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THE AMERICAN CONSTITUTION 













DIAGRAM OF STATE AND FEDERAL POWER 

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ZX. POWERS FORBIDDEN TO BOTH STATESa ND U.S.(I2) 









































THE 

AMERICAN CONSTITUTION 


THE NATIONAL POWERS 
THE RIGHTS OF THE STATES 
THE LIBERTIES OF THE PEOPLE 


Lotoell Jn 0 titute Lecture* 

DELIVERED AT BOSTON, OCTOBER-NOVEMBER, 1907 


BY 

FREDERIC JESUP STIMSON 

w 

Professor of Comparative Legislation, Harvard University; Late Advisory 
Counsel to the U. S. Industrial Commission; Author of “American Con¬ 
stitutional Law,” “American Statute Law,” “Handbook to 
the Labor Law of the United States,” etc., etc. 



NEW YORK 

CHARLES SCRIBNER’S SONS 
19 14 


















Copyright 1908 by 

CHARLES SCRIBNER’S SONS 



4 



t 

€ 

e 

1 





PREFACE 


In these lectures I have used, for veri¬ 
fication of facts, chronology, etc., the monu¬ 
mental work of Hannis Taylor, LL.D., 
“The Origin and Growth of the English 
Constitution/’ Boston, Houghton, Mifflin & 
Co., 1889, and the English classic, Taswell- 
Langmead, “English Constitutional His¬ 
tory/’ sixth edition, London, 1905. For 
other facts and statements, their ampli¬ 
fication and explanation, the reader is 
referred to my own work “American Con¬ 
stitutional Law; the Federal and State 
Constitutions/’ Boston Book Company, 
1908. 

The frontispiece is taken from the last- 
named book, by courtesy of the publishers. 





CONTENTS 


CHAPTER PAGE 


I. The Meaning of the Constitution . i 

II. Constitutional Rights Peculiar to 

English and American Freemen . 32 

III. English Liberty and the Freedom of 

Labor.63 


IV. Development of These Rights; Their 

Infringement by Kings and Their 
Reestablishment by the People . 92 

V. The Expression of Those Liberties in 

Our Federal Constitution . . . 131 

VI. Division of Powers Between Legis¬ 
lative, Executive, and Judicial; 
and Between the Federal Gov¬ 
ernment and the States . . . . 167 



CONTENTS 

CHAPTER 

VII. Changes in the Constitution now 
Proposed . 

VIII. Interstate Commerce, the Control of 
Trusts, and the Regulation of Cor- 


PAGE 

204 


PORATIONS 


227 




THE AMERICAN CONSTITUTION 







I 


THE MEANING OF THE CONSTITUTION 



‘HERE seems to be an impression 


A abroad that our Constitution is a 
mass of dry bones; or at least that it is a 
technical document, in part faulty, and for 
the most part obsolete—like the rules of a 
game which has since so changed its nature 
that the old rules no longer apply. The 
Constitution has been likened to the frigate 
Constitution; a famous vessel in her day, 
but obsolete in type, no longer fit to cope 
with modern conditions. This metaphor is 
utterly misleading. I want to show you 
that it is not a mass of dry rules, but the 
very substance of our freedom; not obso¬ 
lete, but in every part alive; more needful 
now than ever, and as fitted to our needs. 
Some of the constitutional rights which 
were thought of great importance under the 
Stuarts, or even one hundred years ago, 
may possibly seem less familiar and less 


i 


THE AMERICAN CONSTITUTION 


necessary to us now. Even if it were true, 
that would not make of the Constitution 
an “ antiquarian curiosity.’’ But when we 
come to discuss them, we should hesitate 
from hastily assuming that any one of them 
has grown so obsolete as to be unnecessary 
to preserve. A few months ago, the provi¬ 
sion against Bills of Attainder—that is, 
condemnation for crime or forfeiture of 
civil rights without due process of law— 
would have seemed hardly necessary in 
America. Yet since then, in his praise¬ 
worthy zeal to punish a military disorder, 
so far quite within his constitutional right 
as Commander-in-Chief, we have seen our 
President dictate what was little else than 
an Executive Bill of Attainder—a thing 
which was hardly, if at all, attempted by 
the Stuart kings. Another instance—after 
the Norman kings were deprived of the 
power of making laws, the Stuarts, James 
I and Charles I, assumed the power to 
suspend them. This led to the protest of 
Chief Justice Coke and the Commons, and 
ultimately to the Civil War; so that finally 
after the Revolution it was put into the 
Bill of Rights that the king should have no 


2 


THE MEANING OF THE CONSTITUTION 


power to suspend the operation of any law. 
This also might seem obsolete; but if it 
were true—which it is probably not—that 
our present Executive recently promised to 
suspend or withhold the operation of the 
anti-trust law in case a certain great cor¬ 
poration were to take over the property of 
another, this would be an exact instance in 
point. No, we dare not say any part of this 
great document is obsolete, and it is all full 
of human meaning, of present application. 
It is to explain the true meaning of the 
Constitution, its human meaning, the safe¬ 
guards that it gives to every one of us, 
the live issues that it still embodies, that 
I have been asked to give this course of 
lectures. 

The study of Anglo-American constitu¬ 
tional law is that of the liberties of the 
people. It is neither a body of technical¬ 
ities, as the demagogue is prone to con¬ 
sider, nor an instrument first new created 
in the year 1787, and now only an incon¬ 
venient impediment to the national destiny. 
Our own Constitution embodies and im¬ 
proves upon the English Constitution, and 
the English Constitution registers the total- 
3 


THE AMERICAN CONSTITUTION 


ity—the aggregate—of those great principles 
which in eight hundred and forty years of 
struggle the Saxon peoples have won back 
again from Norman kings, from Roman con¬ 
ceptions of the sovereign state. Each rising 
wave of freedom left its record in some 
historic document—then perhaps the times 
cause it to recede again—until the next 
flood leaves a higher record still. And the 
Federal Constitution, the whole of it, is 
nothing but a code of the people’s liberties, 
political and civil; a code of many cen¬ 
turies’ growth, which they willed to adopt in 
1787, and willed should never be abrogated 
without the people’s will. 

I said eight hundred and forty years— 
reckoning from the Norman Conquest; but 
the main constitutional principles are much 
older and go back as far as goes the history 
of the English people. William might con¬ 
quer England, but he could not alter their 
free laws; from every wave of Norman 
tyranny they emerge, clearer than ever. 
Each king in turn must learn to recognize 
their strength; until, in the English Revo¬ 
lution, the Crown finally gave over all at¬ 
tempt to hold itself above them. 

4 


THE MEANING OF THE CONSTITUTION 


And we have added in America two or 
three new principles which the world is 
agreed to consider the most remarkable of 
any of them. /First of all, the great discov¬ 
ery that the people might be protected from 
any danger to their liberties, from the legisla¬ 
ture or the courts as well as from the Crown, 
even from that Federal Government they 
were going to create; second, the great prin¬ 
ciple of the separation of the powers of 
government, which first appears in the Vir¬ 
ginia Bill of Rights of 1776, just one month 
before the Declaration of Independence, and 
also written by Thomas Jefferson; and again 
in the Massachusetts Constitution of 1780, 
in the famous words of the closing para¬ 
graph of our great Bill of Rights: “In the 
government of this commonwealth, the legis¬ 
lative department shall never exercise the 
executive and judicial powers, or either of 
them: the executive shall never exercise the 
legislative and judicial powers, or either of 
them: the judicial shall never exercise the 
legislative and executive powers, or either 
of them: to the end it may be a government 
of laws and not of men.” These last ten 
words, you remember, Daniel Webster said 
5 



THE AMERICAN CONSTITUTION 

were the greatest words contained in any 
written constitutional document. And this 
separation was without any precedent in 
actual history. Montesquieu had men¬ 
tioned it, basing his discovery on the history 
of England—where a free people had re¬ 
peatedly nearly lost its freedom by having 
the executive, that is, the King, assume 
legislative powers, that is, making the laws; 
or assume judicial powers, by interfering or 
controlling the courts which interpreted 
them. And a third great invention of ours, 
more rarely noted though clearly novel in 
the history of the world, was that wonderful 
scheme whereby local self-government, the 
control by the people of their own affairs, 
which was, from prehistoric times, a cardinal 
Anglo-Saxon right, was recognized and con¬ 
joined with the powerful national govern¬ 
ment, working directly upon the people, and 
not upon the States, as had been the case 
in all other federations of history and was 
the case even in our own under the Conti¬ 
nental Congress. So that we, the people, 
manage our own domestic affairs, sue and 
are sued in our own courts, are tried under 
our local laws, while yet we have clothed 
6 



THE MEANING OF THE CONSTITUTION 


the national government at Washington 
with power adequate to defend the nation, 
maintain its dignity abroad, and duly regu¬ 
late affairs of national concern. And the 
last wonderful invention—we might almost 
call this also an accident—was the making 
the Supreme Court of the United States— 
not the King, the Executive, nor even Con¬ 
gress—the high guardian of this Constitu¬ 
tion itself; so that no law could be made 
and no act be done in possible violation 
of any of a man’s constitutional rights that 
the man himself, be he the humblest citi¬ 
zen, could not go into a court and have the 
law annulled. 

“Annul” is the usual phrase, but it is 
an incorrect one; and this brings us to the 
first great distinction I want to leave in 
your minds, namely, what is our Constitu¬ 
tion, as opposed to an ordinary law or act of 
Congress. 

The Constitution is the permanent will 
of the people; a law is but the temporary 
act of their representatives, who have only 
such power as the people choose to give 
them. When the people of a State, or the 
United States, come together and make a 
7 


THE AMERICAN CONSTITUTION 


constitution, they are doing the highest po¬ 
litical act; and they themselves are the high¬ 
est political power known to free Anglo- 
Saxon peoples. The people of Oklahoma, 
when they came together the other day to 
frame their Constitution, were the supreme 
political assembly known to a free world. 
They are the very source of all political 
power; nothing can withstand their will, 
and when expressed, it is permanent until 
they themselves in the same way choose to 
change it. Legislatures are but a small 
representative committee; for convenience 
delegated with a few, and only a few, of the 
boundless powers of a free people. Legis¬ 
latures arose, as you know, in quite recent 
times. Almost down to the Conquest, the 
whole body of the Anglo-Saxon people made 
their law: the Witenagemot, or, as the Nor¬ 
mans call it, the Great Council of the Realm. 
In theory every freeman could go, and was 
supposed to go, to these Witenagemots. 
Indeed, it is on record that at one of them 
held on Salisbury Plain, about a hundred 
years before the Conquest, there were sixty 
thousand voters present. This is “direct 
legislation by the people ” of which we hear 


THE MEANING OF THE CONSTITUTION 


so much to-day and which some of our 
western States are beginning to introduce 
once more. But, for obvious reasons of 
convenience, in the course of two or three 
centuries they got into the way of choosing 
a smaller number of men to represent them. 
This is what we call representative govern¬ 
ment; and this was called the great invention 
which the English people had given to the 
world’s science of government. It was first 
used in the very assembly which drew up 
Magna Charta. It has been copied—like 
trial by jury—everywhere since; in every 
European country, now even in Russia. 

Now, Parliament, in England, is sup¬ 
posed to have all the powers of the people; 
but we more jealously guarded the people’s 
rights, and all our State constitutions, as 
well as the National Constitution, carefully 
say that Congress, or the State legislatures, 
do not have all the powers of the people; but 
only represent them in such matters as they 
have expressly delegated to them in our writ¬ 
ten constitutions; and that all other powers 
are reserved to the people, or to the States. 

Now, then, I hope you will see why it is 
incorrect to talk about a court “nullifying” 
9 


THE AMERICAN CONSTITUTION 


a law. /No one of our courts, not the Su¬ 
preme Court of the United States, ever 
nullifies or can annul a law; but when there 
is a State statute or an Act of Congress on 
the one hand, and the permanent will of the 
people expressed in the Constitution on the 
other hand, and the two conflict—the courts 
have to choose which law to apply, and they 
apply the higher law, that is, the permanent 
will of the people as expressed in the Consti¬ 
tution—not the attempted act of their rep¬ 
resentatives beyond their own authority. 
The other law is really no law at all, and 
never was law; for under the American idea, 
that cannot be law, whether made by Con¬ 
gress, government, or President, by board 
or by commission, which in any way clashes 
with the permanent written will of the peo¬ 
ple. No other country in the world has this 
principle, whereby not even the government 
can make a law counter to the Constitution; 
nor any officer can do an act not authorized 
by it; and in either case the Supreme Court 
is made the umpire to judge. This system 
is the envy and the marvel of the rest of 
the civilized world. 

The next great distinction between ours 


io 


THE MEANING OF THE CONSTITUTION 


and the English Constitution is this:/the 
English Constitution was made to protect 
the people against the King, against the 
Executive alone; not against bad laws, 
against Parliament. It was a bulwark 
against Charles Stuart, Henry VIII, and 
George III; but it was no bulwark against 
the Rump Parliament of the later Common¬ 
wealth, or against the corrupt Parliaments 
of the Tudor kings. Therefore, in England, 
when the kings sought to re-enslave the peo¬ 
ple, they were apt to make the effort through 
a subservient Parliament, even more than 
by a subservient judiciary; for the English 
Constitution is no bulwark to protect the 
people from parliaments or courts. But 
we had the wonderful ide2( of protecting 
ourselves against any usurpation of govern¬ 
ment, and the usurpation of any govern¬ 
ment—even of our own—thus retaining the 
liberties of the people forever in their own 
hands,) exercised in their own local courts, 
their own town meetings and their own 
legislatures, guarded by all the courts of 
the States and of the United States; so that 
even their own government, set up only so 
far away from them as Washington, might 


ii 


THE AMERICAN CONSTITUTION 


not too much busy itself with their domestic 
concerns. For the one thing the English 
people learned was that a distant govern¬ 
ment, even benign—Henry VI in France, 
for instance, or even too much power cen¬ 
tralized in London—was dangerous to the 
well-being if not the liberties of the people. 
The twelfth and thirteenth centuries are a 
continual struggle to keep power where it 
belonged—in the people’s councils, not in 
the will of the King; in the county courts, 
not with the royal Chancellor. “The great 
original principle of the English judicial 
system was that of trial in local courts prop¬ 
erly constituted—trial per pais, in the pres¬ 
ence of the county, as opposed to a distant 
and unknown tribunal.” (T. L., 28.) And, 
therefore, in our Federal Constitution we 
protected ourselves against usurpations even 
of our own government, or of either branch 
of it, Congress or President, on those home 
liberties which a thousand years’ experience 
have shown to be, as it were, the irreducible 
minimum necessary to the Anglo-American 
people for freedom as they understand it. 
Now this was no accident; the Anglo-Saxon 
system is not to make constitutions ready- 
12 


THE MEANING OF THE CONSTITUTION 


made, but to let them grow out of events and 
the actions of free men; and though it might 
seem marvellous that our Democracy, a 
Democracy which for the first time in history 
grasped all the reins of government, legis¬ 
lative as well as executive and judicial, grow¬ 
ing conscious of its power actually to make 
the laws, should, as a first step, have taken 
pains to put this curb upon themselves and 
invented written constitutions, State and 
National,—there were two reasons for it; and 
these reasons are opposite to one another. 

The genius of the Anglo-Saxon people is 
to rule themselves. To a certain extent it 
had been done, at least so far as the King’s 
powers were concerned, in England for 
many centuries: “The laws of the English, 
the most ancient of modern law, extend in 
an unbroken series from Ethelbert, the first 
Christian King of Kent; the earliest written 
collections are simply digests of local un¬ 
written customs which had been handed 
down by oral tradition and were now put 
in writing to meet the needs of a more de¬ 
veloped and centralized State organization” 
(T. L., 33), and we had not—the founders 
had not—any doubt of our ability to go on 


THE AMERICAN CONSTITUTION 


ruling ourselves. But we were doing two 
things which were novel in the world’s his¬ 
tory: we were setting up State legislatures 
with unlimited powers; and we were setting 
up a remote Federal Government which we 
were anxious to keep in hand. Remember, 
the State constitutions are older than the 
Federal Constitution, and served as model 
for it. And the framers had two things to 
consider: they were trying to make a national 
government which should be purely political , 
that is to say, have to do with the nation as 
a whole in its relation to other nations, 
should look out, therefore, for their peace 
and protect them in time of war; and also to 
create and maintain State governments, at 
home, to regulate the social affairs of the 
people. To the States, therefore, was in¬ 
trusted a man’s liberty in relation to other 
individuals, a man’s private property, all 
the regulation of his domestic concerns; to 
the Federal Government, as such, the Fed¬ 
eral Constitution gave but one power over 
the States directly—but one right to in¬ 
terfere with them—and that was, if they 
ever ceased to maintain a republican form 
of government. Short of that, of their es- 
H 


THE MEANING OF THE CONSTITUTION 


tablishing a monarchy or a tyranny, the 
President of the United States and the 
Federal Congress have no right to direct 
interference with a State as such. 

Now these two constitutions, State and 
National, were, as you know, for the first 
time put in writing by our forefathers—the 
first written constitutions in the history of 
the world. For the English Constitution 
is not contained in any one writing. This 
double safeguard, or set of constitutions, 
State and National, were drawn up with 
ends in view which were almost opposite 
to each other. And this is the next thing 
that I am going to ask you to remember. 
What our forefathers were afraid of in the 
Federal Government was an aristocratic or 
autocratic rule, or a remote power which 
might come to interfere with their domes¬ 
tic affairs. Therefore, the influences which 
restrained and limited the Federal Con¬ 
stitution were democratic. Most of its re¬ 
strictions were drawn up by men like Jeffer¬ 
son, jealous of any government which was 
not direct from the people. The State con¬ 
stitutions, on the other hand, were rather 
aimed at protecting the propertied classes— 
i5 


THE AMERICAN CONSTITUTION 


the aristocratic classes—from the omnipo¬ 
tent legislatures they were about to create. 
Therefore the restrictions in the State con¬ 
stitutions are mostly imposed on the demo¬ 
cratic legislatures in the interest of property 
or of order. It was the propertied classes, 
the educated classes, which drew up the 
State constitutions and insisted most upon 
them; it was the democratic masses rather 
who watched so jealously the powers about 
to be given by the United States Constitu¬ 
tion. Some things they were all united 
upon, first of all the great Bill of Rights; 
which is much the same thing in both; 
those marvellous clauses which grew from 
five sentences in Magna Charta to thirteen 
in the Bill of Rights of 1689, when they had 
had experience of the Stuart tyranny, and 
to sixteen in the Virginia Bill of Rights, and 
thirty in the Constitution of Massachusetts; 
and, in the Federal Constitution, the first ten 
amendments. These are the fundamental 
things; and the people of the United States 
refused to adopt the Constitution itself un¬ 
less these ten amendments were promptly 
added; and so it was done. These, in other 
words, are the principles they cared for 
16 


THE MEANING OF THE CONSTITUTION 


most; and these are the principles of which 
I shall try to explain the importance in 
these lectures. Remember, it was the peo¬ 
ple under Jefferson who said to the Federal 
Government: “Thus far shalt thou go and 
no farther ”; it was the educated, propertied 
classes, the Federalists at home in their own 
States, who said the same thing to the State 
legislatures to whose local government their 
personal liberties and private fortunes were 
about to be intrusted. And the historical 
reasons for both are that during the Revo¬ 
lution we had disastrous experience of om¬ 
nipotent State legislatures, for the first time 
clothed with boundless power and recklessly 
using it, and in the Revolution also we had 
experience of the weakness of a national 
power which could not enforce its laws di¬ 
rectly upon the people of the States. One, 
therefore, is meant to frame a Nation, the 
other to organize the States; but both were 
carefully limited, the one in the interest of 
the people and the States, the others in the 
interest of the people alone. 

But neither Constitution was or is a mass 
of dry bones. The very definition of a 
Constitution is—the expression of the peo- 
l 7 


THE AMERICAN CONSTITUTION 

pie’s liberties; and both Federal and State 
constitutions were devised to secure this; 
but the one, rather political liberty, in and 
from the government at Washington; the 
other, rather personal liberty, for the people 
themselves and their possessions at home. 
Remember, again, the two great differences 
we have made from the English Constitu¬ 
tion; first, the separation of the powers, and 
second, the subordination of the government 
and even of Congress or the State legis¬ 
latures to the permanent will of the people 
as expressed in a written document which 
they alone could alter. And this is the great 
difference between English freedom and 
American freedom to-day. Under the Eng¬ 
lish Constitution the House of Commons is 
the people, is the sovereign; anything it does 
is right, constitutionally speaking. With 
us, not Congress, not the legislatures, but 
the people remain sovereign. We never 
have parted with our sovereignty. Our 
legislatures, State and National, merely rep¬ 
resent the people; and that in a carefully 
delimitated scope of authority. If Con¬ 
gress or a State legislature transcends that 
authority which they derive from the peo- 
18 


THE MEANING OF THE CONSTITUTION 


pie, or when the Executive does so, even the 
President of the United States, the courts are 
bound to take no notice of such acts; not 
to destroy such laws, as those who would 
make the courts unpopular are fond of 
saying, but to apply, where two rules clash, 
the higher rule; that is to say, not the will of 
the present President or Congress, but the 
permanent will of the sovereign people as 
expressed in the written Constitution. 

I need no apology for presenting this sub¬ 
ject at this time. The English people, in a 
thousand years’ experience, have found that 
their liberties were never so really in danger 
as when they knew it least, never so nearly 
lost as under the kings they liked best. 
They were in no danger from kings like 
John; it was from John they won Magna 
Charta itself. They were in no danger from 
kings like Charles I. They had, it is true, 
a big fight for their liberties then, but they 
were never really in danger. It was Charles’s 
head that was. But under Elizabeth, under 
Henry VIII, and under George III (who, 
we must remember, was a very popular king 
in England) they lost so many of their 
birthrights that it took sometimes a century 
l 9 


THE AMERICAN CONSTITUTION 


to win them back. Of course it was easier 
for them to lose, and harder to win back, 
because their Constitution was not in writ¬ 
ing, was not definite. It was always open 
to Henry VIII or Charles I to deny that the 
constitutional principle for which they were 
contending really existed. But the fact re¬ 
mains that these principles were destroyed 
or were surrendered or taken away from 
them usually when the people were of one 
mind with the king; usually when they 
themselves were willing to subordinate their 
liberty birthrights to the passion for equality, 
or to some other immediate end. And this 
is natural. When a people is unanimous— 
as we now are—on most of the things that 
we desire, we may carelessly adopt a means 
that seems to be a short cut that way, though 
it be destructive in later times, or in other 
hands, of government by the people itself. 
And it seems as if a portion, or a party, of 
our people were in danger of adopting the 
European view of government and of law¬ 
making—that law is a command of the sov¬ 
ereign, not a custom of long growth among 
a free people; that a legislature or a sovereign 
nation is, or ought to be, omnipotent; and 


THE MEANING OF THE CONSTITUTION 


that whatever power a European Great 
Power had or has necessarily resides in our 
Executive or in Congress—although the 
whole history of our Republic is that it is 
the first great attempt of a free people to 
keep certain of such powers in their own 
hands—at least until they choose to give 
them up—and to base for all time their 
own national career upon undying princi¬ 
ples, as written in those tablets wherein our 
people have expressed their will only to 
be governed and their desire that by them 
alone their Republic shall endure. 

Now I am going to take up this course 
in the inverse order of the title. That is 
to say, I am going to speak of the liberties 
of the people first. Broadly speaking, what 
are they ? They may be divided into three 
broad streams, each one of which is con¬ 
tained in Magna Charta itself: The right 
to life and liberty—the right to property, 
whereby a man’s liberty, that is to say, his 
powers, are increased—and the right to 
law. And I am going to take these up also 
in their inverse order, beginning with law: 

What is the right to law ? I am going to 


THE AMERICAN CONSTITUTION 


try to define what I mean at the end of this 
lecture, though I shall have time to amplify 
it in the next; and let me say here that one 
great difficulty I am going to have in this 
course is in making you see what, in a sense, 
you have always seen. We are not con¬ 
scious of the air we breathe; but if some 
Martian from another planet who got on 
without air, should come to us, he would be 
very conscious of it indeed. Now the right 
to law is like this. The right to law, as 
known to Anglo-Saxon peoples, is something 
which has not any parallel in any other 
country in the world and which never had 
any like elsewhere in any time. It is utterly 
unknown even to such countries as Germany 
and France. It is so unknown that it is not 
even understood there except by their stu¬ 
dents; while it is hardly understood by us 
just because we are so used to it that we 
cannot understand anything else. In Ger¬ 
many, if anybody injures you under pre¬ 
tence of government authority, that is to 
say, if he is the Emperor, or a member of 
the government, or a judge, or a soldier, or 
a policeman, because of that fact you have 
no legal right to sue in the ordinary way. 


THE MEANING OF THE CONSTITUTION 

The wonderful Anglo-Saxon principle, on 
the other hand, is and always has been, 
since it was re-established against the Nor¬ 
man kings, that there is nobody so high as to 
be above the law . If the emperor, or a soldier, 
or a general, or a policeman, does what you 
think he has no legal right to do, you can 
have the law on him —a vulgar phrase, which, 
like many vulgar phrases, is pithy with ex¬ 
act truth. I repeat that in Continental 
countries, to say nothing of Asiatic, there is 
no such thing as having the law upon a 
man who pretends to act under some gov¬ 
ernment authority. They have a whole 
system of privileged law—what they call 
Administrative law—devised for the use of 
government functionaries alone. From this 
the plain citizens are excluded. But with 
us, if the President of the United States 
interferes with your liberty unlawfully, you 
can resist him, both by force, in proper cases, 
and always by suit in the courts. If a 
magistrate arrests you without proper cause 
you can sue him just as much as if he were 
not a magistrate. If a commission seizes 
your property, you can appeal to a jury. 
Every English freeman, every American 

23 


THE AMERICAN CONSTITUTION 


citizen, is entitled to have his law —to have 
his rights tested in his own courts—in his 
own courts, mind you, not in some other 
court in some remote place, or in some other 
government tribunal—this was what they 
dearly struggled for in England—not be¬ 
fore a Star Chamber or a Government Board 
or a Royal Commission—but in the plain 
county common law courts—in his own 
courts at home, and as against anybody. 
He can sue anybody there, and he cannot 
be haled away for trial to any lofty or re¬ 
mote tribunal. Violation of this principle 
by George III is what the Declaration of 
Independence complained of: we were made 
to stand trial in England, where we could 
not bring our witnesses, or have the judg¬ 
ment of our neighbors. This principle— 
the right to law—equal law—was thor¬ 
oughly established back in England as 
early as the reign of Saxon Edgar, re-es¬ 
tablished under Henry II, and is the car¬ 
dinal difference between the rights of an 
English citizen and those of other countries. 
We have the right to law, and the law 
against anybody; they have no right to law 
against the government or those in authority. 
24 


THE MEANING OF THE CONSTITUTION 


This is a thing which Continental people 
cannot understand and which Americans 
or English, travelling in Continental coun¬ 
tries, have always been so full of that it 
brings them into difficulties. That is to 
say, if a Frenchman is arrested by a man 
in uniform, the last thing that would occur 
to him is the notion that he has any right 
to resist or to make question. At most he 
may humbly ask what his offence has been. 
An Englishman or an American, on the other 
hand, when his personal liberty in any way 
is interfered with by anybody, whether a 
soldier, or a policeman, or a general, or a 
judge, wishes at once to know, what for? 
and he has the right to know, what for! and 
to test it in his own law courts. And that 
permanent and universal right to law, as 
against anybody, belonging to everybody, 
is the first and almost the greatest of the 
people’s liberties. 

And now, what is this law ? and this 
brings out another fundamental difference 
between Anglo-American and European 
freedom. The English notion of law is 
diametrically opposed to the Continental, 
Norman, or Roman notion—as different as 

25 


THE AMERICAN CONSTITUTION 

black from white, or as sound from sight. 
The two conceptions of law are so different 
that there really is almost no relation be¬ 
tween them—and asking you kindly to re¬ 
member this difference, I will close with it. 
In brief, the English notion of law is the 
custom or usage of a free people, not orig¬ 
inally expressed in writing, and not com¬ 
manded by anybody except, possibly, the 
people themselves. The Continental notion, 
which was the Roman notion and hence the 
Norman notion, is the command of a sov¬ 
ereign to his subject, necessarily, therefore, 
written, and made new by the king. It is 
created by the government, to whom the 
people are subservient; not born of the 
people, of whom the government itself is 
the creation. It may bear no relation to 
custom or usage, or past history or even 
common sense. It is an order, as from a 
master to his slave. English law—Saxon 
law—on the other hand, is the usage that a 
free people have had, a matter of custom 
which everybody is supposed to know, and 
which, in theory at least, has lasted for all 
time, something like a law of nature. It is 
not commanded of you by anybody, in 
26 


THE MEANING OF THE CONSTITUTION 


original theory; it is simply that code of 
customs by which your acts are judged and 
which may enable you to take the law into 
your own hands—for this was the original 
remedy. That is to say, in the year 600 
or 700 there were certain cases, certain 
offences, which put a man out of law; that 
is the origin of the word “outlaw.” There¬ 
upon you could kill, him, or avenge yourself 
on him, as the law allowed. If a man took 
your cattle, or if he injured your person, you 
had the right to avenge yourself upon him 
to a certain definite extent, ranging all the 
way from killing him, down through per¬ 
sonal chastisement, to a mere money fine. 
You executed the law yourself; or your 
neighbors helped you. It was not done for 
you by a king. Later, as civilization im¬ 
proved, it was done for you by the whole 
people, through their courts; originally by 
your neighbors, witnesses, who stood by 
you in surety. 

This difference is so radical that we must 
never lose sight of it. English law, Ameri¬ 
can law, is in theory the established customs 
of a free people. All other law in the world 
is the order of a sovereign to a subject. 

27 


THE AMERICAN CONSTITUTION 


Under the Norman kings, it is true, writs 
were brought in the name of the king, “ We, 
John, command you,” etc., but this was 
only their formula. Writs in our States run 
in the name of the people; for instance, “In 
the name of the people of the State of New 
York, by the grace of God free and inde¬ 
pendent.” When a trespass was committed 
in Norman England, it was claimed to be 
committed against the peace of the king, 
and so it is termed in the law process still; 
with us, it is against the peace of the people. 
The attempt of the Norman kings to intro¬ 
duce European notions of law, Continental 
notions of royal authority, was successfully 
resisted by the English people in the first 
two centuries after the Conquest, so that in 
substance their law is the same as ours; but 
the effort of the Norman kings to introduce 
Continental ideas remains in the words that 
I have quoted—“against the peace of the 
king”; and suits are still in theory tried 
coram rege —before the king as the fountain 
of justice. Stubbs tells us that in a sense 
the great struggle of the English people 
under the first Norman kings was to es¬ 
tablish that the peace of the realm was the 
28 


THE MEANING OF THE CONSTITUTION 

peace of the people and not the king’s peace. 
Not a mere phrase, you see, but a very real 
meaning. Is it the government that is 
sovereign, or is the government but the 
servant? They struggled successfully; and 
all vestige of the Norman attempt to foist 
European ideas of law and government upon 
the English people has been swept away, 
with the exception of a few mere forms. 
We shall find the same thing when we come 
to law-making. Under European theories 
the law is made by the king, as I have said; 
it is the order of the Crown to the subject. 
Under English theories, it is made first by 
the whole body of the people, then by their 
representatives in Parliament. The Norman 
kings insisted on their royal form, and every 
act of the British Parliament is still signed 
“The king so wills”; but Parliament or the 
people very early got the substance back, 
and established their right to make the laws 
themselves. It is characteristic of the Eng¬ 
lish people not to care for forms provided 
they get the substance. So the first aspect 
of English constitutional history since the 
Conquest is the effort of a free people to re¬ 
establish two ideas—the right of everybody 
29 


THE AMERICAN CONSTITUTION 


to law, and the right to law as it was in the 
time of Edward the Confessor; that is to 
say, to the customs of the free Saxon people 
and not the orders of a feudal lord. And 
every Norman king after William was made, 
on his coronation oath, to promise this—the 
laws of Edward the Confessor—until Magna 
Charta came. After that they promised to 
respect Magna Charta instead. 

And now the reason why we had to have 
written constitutions, not unwritten as in 
England, is because with us the people 
is the sovereign, not, as in England, now 
the House of Commons and formerly the 
king; and our legislatures cannot make any 
kind of law they will, but only such as the 
people have chosen to allow. When you 
have the people sovereign, possessing all 
powers arid only parting with such of them 
as they choose to their own legislatures or to 
their own executive, you see it is necessary 
to have a written constitution in order to 
make clear just what powers the people have 
given away. Without a constitution, our 
legislatures would be, like the English Par¬ 
liament, omnipotent; just as without a con¬ 
stitution the English king would be omnipo- 

30 


THE MEANING OF THE CONSTITUTION 



therefore, of 


a constitution is to protect the people’s 
rights, both the rights of the whole people, 
or any part of the people, or even of one man 
as against the people, in such cardinal rights 
as by our constitutions he is declared not 
to have given away; to protect them against 
either king or legislature. This is consti¬ 
tutional government. The object of repub¬ 
lican government is to enforce the will of 
the majority; the object of constitutional gov¬ 
ernment is also to protect the rights of the 
minority; to guarantee to each and every 
man, to every class, the essential rights that 
he must never part with. And it is those 
cardinal rights, the liberties of the people, 
which form the first subject of these lectures, 
and the first, and in some respects the great¬ 
est of them, is this right of every man to law. 


3i 


II 


CONSTITUTIONAL RIGHTS PECULIAR TO 
ENGLISH AND AMERICAN FREEMEN 

O UR Constitution adds to the English 
two great principles, the separation 
of the powers of government so that the 
same man or body of men can never both 
make the laws and administer them, or ad¬ 
minister them and judge those who break 
them; and that our people are protected not 
only from the Executive power, but from 
reckless or unjust legislation, especially by 
the National government; by defining in a 
written Constitution just how far that gov¬ 
ernment may interfere with the people’s 
domestic affairs, and leaving the determi¬ 
nation of that question to the United States 
Supreme Court. And it differs from it in 
the creation of two governments side by 
side, the National government to protect 
and administer the affairs of the Nation— 
not a mere league or federation, as in all other 
32 


CONSTITUTIONAL RIGHTS 


historical examples, but with laws and courts 
working from the centre at Washington di¬ 
rectly on the States and on the people—and 
at the same time carefully retaining the State 
governments to control substantially all re¬ 
lations of the citizens among themselves, to 
protect their lives and liberties, regulate 
their rights of property and both raise and 
expend the money taken from them by way 
of taxation. For, remember, the National 
government was practically given no power 
of imposing taxes directly on the people, and 
this alone would indicate that it was not 
supposed to concern itself overmuch with 
their domestic affairs. Our written con¬ 
stitutions express the permanent will of the 
people, while our laws, our Acts of Congress, 
or our State statutes, are merely the opinion 
of a present majority of their representatives; 
and in this country the people are sovereign 
and not the Legislature, as in England, or 
the Executive, as in European countries. 
A wonderful self-restraint was shown by 
our Constitution makers when they made 
ours a protection against our own legis¬ 
latures as well as the Executive; an enlight¬ 
ened jealousy of too much government of 
33 


THE AMERICAN CONSTITUTION 


any sort, of the Federal Congress because 
it was remote and, as they feared, undemo¬ 
cratic, and might grow too powerful, so as 
to take the liberties away from the people or 
from the States; and of our State legislatures, 
which had exercised, during the Revolution, 
indefinite powers, when they put restrictions 
in the State constitutions limiting them also. 

Now this jealousy has not decreased, but 
rather increased as time goes on. The later 
State constitutions, especially those of the 
far Western and Southern States, most not¬ 
able of all, that of Oklahoma, increase very 
much the number of these restrictions; so 
that there is not to-day in the Union prob¬ 
ably any State whose legislature has so much 
power as that of the State of Massachusetts, 
while in these newer States their wings are 
clipped so much as almost to take away their 
character of representative government. Still 
more, of late, is this being done where, as in 
the newer Western States, by the initiative 
and referendum, the people are allowed not 
only to make laws directly without the inter¬ 
vention of any legislature, but to have a 
veto whenever they demand it on the acts 
of the legislature itself. On the other hand, 
34 


CONSTITUTIONAL RIGHTS 


I suppose the fear of the powers of the Fed¬ 
eral Government has, on the whole, de¬ 
cidedly decreased in the one hundred and 
twenty years since the Federal Constitution 
was adopted. The reason for this was, of 
course, the Civil War, and the issues which 
led up to it; which showed conclusively to 
all of us that the people of the United States 
must be considered one nation, and that 
the government must be truly national and 
not merely a federal compact. Still, the 
Federal Government, as such, has no direct 
power over the States, except in the one in¬ 
stance of their failing to maintain a re¬ 
publican form of government. Nothing 
has happened in that particular to alter 
the Constitution or our understanding of it 
during the last hundred and twenty years. 
The term “States’ rights” is a misleading 
one to-day, because, as a result of the War, 
we are apt to think of it solely in connection 
with a State’s right to secede. The object 
of the Civil War was to settle this one point. 

A State has no right to secede , except in 
one instance. Oddly enough, no one ap¬ 
pears to have noticed this. Just as the 
United States Government may interfere if 
35 


THE AMERICAN CONSTITUTION 


a State does not keep up a republican form 
of government, so a State may get out of the 
Union under the terms of the Constitution 
itself, if it be ever deprived of its two Senators 
in the Senate. All other rights of a State— 
except secession from the Union—all other 
rights of the people, remain as they were; 
except only that the States are now ex¬ 
pressly prohibited from making laws aimed 
against the negroes. It is still true that 
nobody is with us omnipotent, neither the 
legislature, nor the army, nor the President. 
Universal power is placed back in the lap 
of the sovereign people itself, as it was a 
thousand years ago, before William the 
Conqueror was born. We are, in a sense, 
more English than the English. We have 
absolutely gone back to primal Anglo- 
Saxon principles. 

We have already discussed the people’s 
liberties and observed that they might, for 
convenience, at least, be divided into three 
general fields—rights to law, rights to liberty 
and rights to property. All this was clearly 
expressed in Magna Charta, though I 
warned you against the mistake of suppos¬ 
ing that they existed there for the first time. 

3 6 


CONSTITUTIONAL RIGHTS 


Magna Charta itself is, and purports to be, 
but the recognition by King John of the 
peoples’ liberties as they always existed. 
It begins with the statement that it is made 
by the advice of his people, and goes on with 
the words, “We have by this our present 
charter confirmed does not even say, 
enacted or granted. I then took up the Right 
to Law, and tried to show you how important 
it was, although so familiar that we almost 
forget to think of it; and how unusual it is in 
the science of government; how it exists with 
none but Anglo-Saxon peoples. The right 
to law, in other words, not only protects one 
man from another, but it protects any man 
or class of men, even the humblest, from the 
most powerful, or from the government 
itself, minorities against majorities, indi¬ 
viduals against the government. For that 
reason no officer, not even the President, 
or the army, is placed above it. To take 
an illustration: you may remember that 
curious story in a German city a year or 
two ago, where a crook, having borrowed 
or stolen a captain’s uniform, marched into 
a considerable town, ordered the first com¬ 
pany of soldiers he met to follow him, went 
37 


THE AMERICAN CONSTITUTION 


into the town hall, ordered the mayor and 
council to hand him over the money that 
was in the treasury, and walked away with 
most of it. It never occurred to anybody, 
not even to the mayor of the city, to raise 
any question as to this proceeding. The 
uniform was sufficient and covered any act. 
It was only when the unsuspecting mayor 
went to Berlin that the fraud was discov¬ 
ered. On the other hand, take another 
example here in Boston: in a time of riot 
—in a time of real disorder—a company 
of soldiers on State Street was ordered by 
the captain, in order to protect themselves 
against attack to fire on a mob. They did 
so, and some of the mob were wounded or 
killed. Nevertheless, and to the surprise 
of nobody, not even King George himself, 
who was nevertheless not very fond of Bos¬ 
ton at that time, the captain who gave that 
command was promptly tried for murder. 

This suggests the next point peculiar to 
Anglo-Saxon liberty, and that is that there 
is only one kind of law—the common, ordi¬ 
nary law of the people’s courts. We have 
no separate law for government, no ad¬ 
ministrative law, no martial law. People 
38 


CONSTITUTIONAL RIGHTS 


talk about martial law, and martial law 
does exist or may exist in any country but 
England and the United States—never with 
us. That is another of those fundamental 
truths very commonly lost sight of by us 
and by our newspapers, who all the time 
talk glibly about martial law as if such a 
thing could exist in England or our own 
country. That was the great complaint 
against Charles II, and is the thing most 
spoken of in the Bill of Rights given by 
King William, that the habit of Charles 
was to try people by martial law contrary 
to the laws of England. In an enemy's 
country , in time of actual warfare , there may 
be such a thing as martial law known to 
English courts; although even that is not 
really law, but just the will of the com¬ 
manding officer. But in no time of peace 
and in no domestic State, can there ever be, 
lawfully, martial law. 

Even for the government of the army, 
to establish a military law to control the 
army and navy, they have, under the Con¬ 
stitution of England, to make a new act 
of Parliament each year, and in the same 
manner in this country our Constitution 
39 


THE AMERICAN CONSTITUTION 


forbids any appropriation of money to sup¬ 
port the army for more than two years. 
Military law, you understand, is the law 
which governs the army and perhaps also 
the militia when in actual service. There 
must, of course, be something of this sort; 
but it is not at all the same thing as martial 
law, which means military rule as applied 
to the free people of the country. United 
States soldiers in San Francisco, United 
States soldiers in Pennsylvania at the time 
of the late coal strike, whenever they caused 
the death of a human being, whether in 
self-defence or not, and whether in protec¬ 
tion of property or not, might be, and 
usually were, duly and properly tried for 
murder. Therefore, the army and all that 
it means, military system, militant civiliza¬ 
tion, is not ours. The complaint of stand¬ 
ing armies was first made in England under 
the Stuarts, and they never had any before 
that time; the Petition of Rights addressed 
to Charles I makes much of it, and the Bill 
of Rights as finally granted after the English 
Revolution by King William expressly says 
that “the raising or keeping a standing army 
within the kingdom in time of peace, unless 
40 


CONSTITUTIONAL RIGHTS 


with the consent of Parliament, is contrary 
to law.” 

The other distinctive thing about law in 
connection with Anglo-Saxon ideas of liberty 
is that it must be the people’s law and the 
law of nearby courts; it must not come, save 
where absolutely necessary, from a distant 
and remote place; nor must people be re¬ 
quired to go to that distant place to be tried. 
This is the distinctive achievement of the 
first two or three centuries after the Con¬ 
quest. They won back the notion of local 
law, local self-government, and the right to 
be tried by their neighbors in nearby courts. 
One of the grievances stated in our own 
Declaration of Independence was the prac¬ 
tice of King George III of transporting 
Americans beyond the seas to be tried for 
offences; and it also complains that he “has 
kept up standing armies in times of peace 
without the consent of our legislatures, and 
has affected to render the military indepen¬ 
dent of and superior to the civil power,” and 
as bearing particularly on the right to law, 
note that it also complains that he “has 
made judges dependent on his will alone for 
the tenure of their offices and that he has 


41 


THE AMERICAN CONSTITUTION 


called together legislative bodies at places 
distant from their homes / 5 Lastly, I tried 
to make it clear to you that our law itself 
differs world-wide from Continental or 
Roman law, in that it is always in theory 
the custom, that is, the will, of the people, 
and not the command of a sovereign to a 
subject. Finally, the reason that our Con¬ 
stitution was written and not, as in England, 
unwritten, is that with us the people are 
sovereign, and therefore must put in writing 
the regulations which they wish to impose 
on their own legislatures. 

Closely connected with the right to law, 
is, of course, the right to liberty, the one 
right standing guard to the other. Now 
what is this right to life and liberty? The 
right to life, of course you understand, and 
that right at least is shared by the people of 
most civilized countries. Even the govern¬ 
ment is only allowed to take away a man’s 
life under due form of law. But the word 
liberty is of much wider scope. It means, 
first and foremost, the right of a man not to 
be restrained, not to be put in jail, not to 
be confined. That, of course, you under¬ 
stand also; but here again we find the same 
42 


CONSTITUTIONAL RIGHTS 


world-wide difference between Anglo-Saxon 
notions and Continental notions of a man’s 
rights. When with us a man is arrested by 
another man, he brings an action for false 
imprisonment. If arrested by a soldier or 
policeman, he not only may do that, but he 
demands to know at the time what he is 
arrested for, and asks to be set at large or 
released on bail if arrested for a bailable 
offence. And the law is so jealous of this 
right that it has steadily guarded it in a 
thousand years in this most simple and direct 
form; a writ corresponding to habeas corpus 
is mentioned in Magna Charta, which says 
that it shall not be denied, and shall be given 
without cost; and the clause just before that 
says that no writ shall in future be issued so 
as to cause a free man to lose his court. 
That is to say, to take him away from his 
local jurisdiction and take him before the 
distant kings. Now, there are practically 
only three roads of tyranny, one to destroy 
a man’s life, another to take away his lib¬ 
erty, and the third to deprive him of his 
property; and the second is the more usual 
and effective one. For six hundred years 
the kings, Norman, Tudor and Stuart, en- 
43 


THE AMERICAN CONSTITUTION 


deavored to get around this writ of habeas 
corpus; to arrest people and confine them 
or restrain them without trial and without 
telling why. As a result the great Habeas 
Corpus Act was passed after the English 
Revolution, which made this weapon of 
liberty complete. Not only must the writ 
be given at once and, as a matter of course, 
gratis, but it had to be open to everybody 
and must be granted at any time, by any 
judge, day or night, in vacation or in term 
time. The person or power restraining a 
person of his liberty must produce him with¬ 
in a short time and the prisoner be dis¬ 
charged within two days unless it is shown 
that he is under indictment for an offence 
not bailable. 

Now even to-day—and I have made care¬ 
ful inquiry—I cannot find that there is any¬ 
thing corresponding to this in Germany, 
France or any Continental country. There, 
a man may not be deprived of his liberty by 
another individual; but if he is taken into 
custody by a Government, in any of its ca¬ 
pacities, it is not for him to reason why. 

But the right to personal liberty is much 
more than even this. It includes also the 


44 


CONSTITUTIONAL RIGHTS 


constitutional right of a man to go and come, 
to emigrate, and, if a citizen, to return; 
and, finally, the right not to be banished. 
It was early established as an English 
principle, and it is so with us, that banish¬ 
ment from the country cannot be imposed 
for any offence. On the other hand, a man 
may not be restrained if he wishes to go out 
of the country; and in the United States he 
has the right freely to move from one State 
to another. This right is so jealously 
guarded that in the Supreme Court of the 
United States a law of Nevada was held 
bad which merely imposed a tax of one 
dollar on stage-coach passengers who might 
pass through the State. The right of being 
unconfined when you were still, and of mov¬ 
ing about freely when you wished to, even 
to the extent of leaving the country when 
you like, is, therefore, one of our essential 
liberties. 

And now there is another great difference 
between English and American liberty under 
Saxon law and the liberty of other peoples, 
a fundamental difference between the entire 
law system of the English people and of all 
Continental peoples, which began at the 
45 


THE AMERICAN CONSTITUTION 


very beginning, and departure from which 
is still a legitimate source of grievance, per¬ 
haps, among our laboring classes. Too 
much has, perhaps, been made of the phrase 
“government by injunction.” I have no 
desire to attack the valuable procedure of 
courts of equity, a very necessary method 
of ordering people to do or not to do certain 
acts. Still there is a legitimate objection to 
stretching this great power too far, which 
is evidently vaguely felt by large classes of 
our citizens, but no one, so far as I know, 
has ever noted that it goes down to the very 
root of the theory of English liberty under 
the law. Now, if I can only make clear 
what I mean by this difference in the few 
minutes which remain to me, you will under¬ 
stand what is, perhaps, the greatest differ¬ 
ence of all between our notions of what law 
ought to do for and against the individual, 
and the notions of all Continental countries. 

You remember that I said that the Con¬ 
tinental notion of law was the order of a 
sovereign to a subject, coupled with the 
threat of punishment if he did not obey. In 
other words, the Continental notion of law 
is to make a man do something or not to 
46 


CONSTITUTIONAL RIGHTS 


do something, and this is the Oriental notion 
of law also. You have only to read any tale 
in the Arabian Nights to note, what still re¬ 
mains true of all Asiatic peoples, that the 
caliph or the shah or the grand vizier, when 
one man complains against another, if he 
take the side of the person complaining, at 
once orders that other man to do something 
or to refrain from doing something. This is 
ingrained in the whole notion of Oriental 
and even of Roman law. Yet it is just one 
of those basic facts which may come to you 
with some surprise when I tell you that this 
idea has absolutely no place in Anglo-Saxon 
law or the common law of England or Amer¬ 
ica. The common law, as we lawyers say, 
speaks only in damages. It has no notion 
of ordering a free man to do something 
against his will. Now, this I know may 
surprise you, but it is the exact truth and 
not even an exaggeration. Moreover, it 
dates from a time where man’s memory 
runneth not to the contrary, and still re¬ 
mains as true as it ever was of the common- 
law courts to-day. If one man injure an¬ 
other in civil matters, if you win your case 
in a civil action, the defendant—the other 
47 


THE AMERICAN CONSTITUTION 


man—is not made to do anything. He has 
only to pay you a certain sum of money. 
In the same way, even in criminal cases, 
cases brought by the State against a person 
who has broken a law, if a man is found 
guilty, he is never ordered to do anything, 
not even to make affirmative restitution, as 
might be the case in an Oriental country; 
he is punished, either by death or by im¬ 
prisonment, or, again, made to pay dam¬ 
ages in the nature of a fine. In the very 
first glimpse we have of the Saxon peoples in 
England we find the same system prevailing. 
The notion of the fine, however, was car¬ 
ried to an extent that would possibly seem 
absurd to-day, for then every man had his 
price literally. That is to say, the life of 
every man was worth a certain definite sum. 
A member of the royal family was worth 
ten times more than a baron; the life of a 
baron, ten times more than an ordinary 
freeman and so on. If a man was mur¬ 
dered and not avenged by his kindred— 
which they had a perfect right to do—he 
was liable to pay a fine to the kindred of the 
person slain, and this principle went down 
through minor criminal offences. What the 
48 


CONSTITUTIONAL RIGHTS 


law did was to determine what actions were 
right, and the nature and amount of the 
penalty for such as were wrong. It never 
ventured to order a man to do any definite 
act. That notion was altogether too for¬ 
eign to the ingrained ideas of personal 
liberty which characterized the English 
people. 

Now, that principle is just as true to-day 
in 1907 as it was in 707; and when an in¬ 
junction or an order of a court of chancery 
is served on an American freeman, he resents 
it just as much as his ancestors would have 
done, though he does not know how much 
historical reason and justification he has 
for his dislike of such process. For in¬ 
stance, one of the great grievances in the 
railway strike of 1903 and in the recent coal 
strike of West Virginia was that judges or¬ 
dered men not to quit their work—which 
amounts to very much the same thing as 
ordering them to go on with it. Our com¬ 
mon law does not recognize the right of any¬ 
body, judge, officer or United States Presi¬ 
dent, to order a man to work if he does not 
wish to, or, indeed, to order him to do any 
definite act or thing. If he does wrong, he 
49 


THE AMERICAN CONSTITUTION 


is liable under the common law for the 
damages caused by his act, liable not only 
to the person injured, or, if the offence be 
criminal, to a penalty or a punishment im¬ 
posed by the State, that is, by the whole 
people in their courts. But he is not sup¬ 
posed to be ordered by anybody to do a 
thing that he does not wish to do, however 
harmless it be, or to abstain .from any act 
that he wishes to perform, not in itself crim¬ 
inal -or unlawful. 

Now, how did this un-English right of the 
injunction or the court order get in ? It is 
just an example of a growth upon the Eng¬ 
lish system of ideas brought over from 
Normandy, and enforced first by Norman 
kings and then by their chancellors or chief 
justices. It is really a Continental or Ro¬ 
man law notion, and repeats, in last analy¬ 
sis, the power of a king to order his sub¬ 
jects in any way he will. At first, in very 
early times after the Conquest, this power 
was exercised direct by the King or by the 
King and Council. He very soon got into 
the habit of handing it over to his high 
judicial officers, one of whom, known then 
as the Justiciar, was given this jurisdiction 

50 


CONSTITUTIONAL RIGHTS 


rather in criminal matters, while the other, 
known as the Chancellor, was given it in 
civil affairs. From'the Justiciar historically 
grew the famous court of Star Chamber, 
which was abolished after the English 
Revolution, and which exercised the royal 
power of the Crown to try men for their 
actions and order their doings in Crown 
cases, that is, in criminal matters, or matters 
supposed to be criminal. From the other 
grew the Court of Chancery, which existed in 
theory to mitigate the rigor of the common 
law or to supplement it where inadequate. 
This part of its jurisdiction is, of course, 
sound and good; but it also shared this 
extraordinary un-English, Norman power 
of ordering a free citizen to do something 
that he did not wish to do; and that power is 
found amazingly convenient in modern 
times where it is desired to control the ac¬ 
tions of large bodies of men who individu¬ 
ally, perhaps, are not responsible in large 
money damages, or when it is either in¬ 
convenient or impractical to exert the rem¬ 
edy of the common-law damage suit in the 
courts. 

Under our industrial system a state of 


THE AMERICAN CONSTITUTION 


things has developed where the vast bulk 
of business in this country is done by 
persons acting together under the name of 
corporations; and under our Federal sys¬ 
tem, under the Federal Constitution, where 
any one of these corporations is chartered 
in a different State from that where the 
dispute arises or where its adversary lives, 
that corporation has the right to take the 
litigation and the power of regulating its 
affairs away from the local courts—away 
from the State courts sitting where the people 
live who are most directly concerned—up 
to the United States court, probably, in the 
first instance, some distance away, and ulti¬ 
mately, of course, to the Supreme Court 
at Washington. Under the recent proposal 
of having all corporations which do inter¬ 
state commerce business (and nearly all 
corporations do some) chartered by the 
United States Government, all litigation of 
any sort in which they are concerned would 
always be taken away from the State courts, 
from the local courts, where their mines or 
their mills are situated, and carried to the 
Circuit Court of the United States or to the 
Supreme Court at Washington. It has al- 
52 


CONSTITUTIONAL RIGHTS 


ready grown to be the practice of most 
companies not to rely on the State courts or 
the local courts near where their works are, 
which, with or without reason, they distrust, 
as being more in sympathy with the people, 
but to go straight into the Federal courts and 
into the Federal Courts of Chancery under 
this chancery jurisdiction we are discussing, 
whenever they can; and instead of suing in 
damages or using the local police protection, 
getting an order from the Federal judge, 
addressed to the whole body of their em¬ 
ployees, or even to all the world, ordering 
such people to do or not to do what they 
wish or what they complain of. This order, 
as you know, is termed an injunction— 
originally the highest writ of the royal pre¬ 
rogative in England, but now given to all 
Federal judges of any description, and even 
to many judges of lower courts as well. This 
is not the time, nor do I know that I shall 
have time further, to go into this matter. 
The only point from which it interests us 
to-night is that it shows up this fundamental 
difference between English theories of law 
and Continental ones; that under the Eng¬ 
lish system a free man is never to be ordered 
53 


THE AMERICAN CONSTITUTION 


by the courts to do something, but only to 
stand by the consequences of his acts in 
damages, if he ought to pay damages, or 
be imprisoned, if he ought to be imprisoned; 
while under royal Norman ideas this high 
power of the injunction writ or the manda¬ 
mus grew from the old power of the Norman 
absolute monarch to order his subjects to do 
certain definite things or to act in a certain 
definite way. Under it, as you know, if a 
man disobeyed, he was punished summarily, 
without a trial, in what we call contempt 
process; this also, therefore, being foreign 
to ordinary English notions of procedure, 
which always involve a hearing and a chance 
to produce witnesses and a jury trial. 

Chancery powers are most valuable, and it 
is in my opinion a great mistake to do away 
with them, as they have practically done in 
the new State of Oklahoma. Nevertheless, 
if abused, they will now, as they would have 
a thousand years ago, cause an English 
people such resentment that they will abol¬ 
ish the thing entirely instead of regulating 
it properly. The one point I now wish to 
make is that this is a genuine distinction; 
and, therefore, we may call this the third 
54 


CONSTITUTIONAL RIGHTS 


great difference under which English notions 
of liberty differ from the liberty of people 
in Continental countries. An Englishman 
or an American cannot be ordered to do a 
thing that he does not wish to do, to carry 
out a certain line of action, or to perform 
a certain service. Indeterminate services 
for an indefinite time or even for a long time 
under the English common law were con¬ 
sidered the same as slavery. A man is 
liable for the consequence of his acts, but 
no one can control them or direct them 
against his will—no individual, no officer, 
nor the State itself. 

But the right to personal liberty is far 
more than this also. It includes not only the 
right to be free and move around, to do what 
one will and be responsible for one’s own 
acts, but—and this is getting to be the most 
important of all to-day—it includes the right 
of a man to labor at any trade, to go into any 
business, in short, to earn his living, or to 
exercise his functions or faculties in any 
manner soever that he at any time choose 
without any restraint or hindrance or com¬ 
bination against him on the part of the State 
or of others. This is the great personal lib- 
55 


THE AMERICAN CONSTITUTION 

erty right, and the one that we are still bat¬ 
tling over to-day, for the other two or three 
have been successfully established. No one 
seriously pretends any more to take away 
a man’s life or personal liberty without due 
process of law. But the right to control a 
man, or to interfere with him in his business 
or labor, or trade, is being asserted and re¬ 
asserted more and more, both by his em¬ 
ployers and his employees, and by his com¬ 
petitors and by his fellow-workmen, or even 
by the United States or by the States. Now, 
let us see how those words read in the first 
written expression of them, that is, in the 
Magna Charta of Henry III and of John. 
John, in his charter, the earliest, uses the 
simple expression, “No free man shall be 
taken, or imprisoned, or disseised, or out¬ 
lawed, or exiled, or any ways destroyed, nor 
will we go upon him, nor will we send upon 
him unless by the lawful judgment of his 
peers or by the law of the land”; but in the 
re-issue of the charter by Henry III the very 
significant explanation is added after the 
word “disseised” (which, as you know, 
means deprived of): “No free man shall 
be deprived of his freehold or of his liberties 
5 6 


CONSTITUTIONAL RIGHTS 


or of his free customs” and it is no fantastic 
explanation but was thoroughly understood 
at the time that this meant also the right to 
trade or labor, the right to earn one’s living, 
and the right to be protected both from State 
hindrance and from monopolies; and the 
great Coke, commenting on this clause, says 
that the word “Liberties” means the “gen¬ 
eral freedom possessed by the people in Eng¬ 
land, and that monopolies in general are 
contrary to the Great Charter.” There are 
also other expressions in Magna Charta 
showing this. It begins by saying “ We have 
granted to all the freemen of our kingdom 
all the underwritten liberties to be had and 
holden by them and their heirs forever. . . . 
The City of London shall have all its ancient 
liberties and free customs, as well as other 
cities, boroughs, towns and ports.” This 
particularly means, rights to a livelihood, 
rights to labor and to trade, and also the 
rights of the Guilds, or, as we should say, 
trades unions, which already existed in the 
towns at that time. And I may say right 
here that there were two ways that a man 
got free in England: You probably know 
that at the time of the Norman Conquest 
57 


THE AMERICAN CONSTITUTION 

there were still some slaves—25,000 are 
recorded in Doomsday Book—and several 
centuries after they were called villeins, that 
is to say, farm laborers who were attached 
to the land, not paid in money wages, and 
who were not allowed to leave their master’s 
farm or seek service elsewhere. This class 
was very numerous indeed. Now these 
two ways by which a villein or slave could 
always get free in England were, first, by 
owning land; and secondly, by joining the 
guild of a trade, in a town, and working at 
it for a year and a day. In a sense, there¬ 
fore, labor is the source of freedom in Eng¬ 
land; for many millions more Englishmen 
got free through this door than by any other 
way. This, therefore, is a right peculiar 
to American and English freedom—the 
right to labor or exercise any trade. On the 
Continent, the absolute right of a man to 
labor and trade was never recognized, nor 
the right to earn money or make a profit in 
any way he chose. He was not protected 
from the competition of the State or other 
hostile combinations or from monopolies 
of any kind; for, while the English Constitu¬ 
tion early recognized the Guilds, it at the 
58 


CONSTITUTIONAL RIGHTS 

same time was careful to provide that their 
by-laws should be reasonable and to forbid 
anything that was in restraint of trade. I 
can show you the statutes, almost as old as 
Magna Charta, which recite that the Guild 
of a certain town has made a by-law, or 
combined in such a way as to prevent other 
people from exercising their trade—and 
such by-laws declared for that reason un¬ 
lawful. I can even show you an actual case 
which is as modern as the Sugar Trust in its 
principle; in fact it complains of the very 
thing that our trusts are now said to do. 
In 1221 the Abbot of Lilleshall went to court 
and complained “that the bailiffs of the 
town of Shrewsbury had made many in¬ 
juries against his liberty in that they have 
caused proclamation to be made in the town 
that none be so bold as to sell any mer¬ 
chandise to the Abbot or his men upon pain 
of forfeiting ten shillings,”—and he won his 
case. The court decided that this was what 
we should call a “trade boycott” or unfair 
competition, and against his liberties as a 
British subject. Now this great principle 
has always been law, that not only has a 
man right to labor and trade, but no man 
59 


THE AMERICAN CONSTITUTION 


or set of men can combine against him; and 
that there shall be no combination in re¬ 
straint of trade, no agreement to restrict 
the output, to fix a price, or to increase a 
price or to injure a competitor by unfair 
methods. But this great principle of Eng¬ 
lish freedom had been almost forgotten. 
And, as I told you at the beginning, these 
subjects we are discussing I select, not only 
because they are important and funda¬ 
mental, but because they seem to be being 
forgotten to-day. Most of our anti-trust 
legislation was not really necessary. In¬ 
deed, we had the intelligence never to pass 
any anti-trust statute in Massachusetts. 
We knew that the law was there, if people 
would only enforce it. I make bold to say 
that not a single case has been decided 
against a trust which might not have been 
decided equally well on common-law prin¬ 
ciples. 

But now let us take the other side of it. 
We have been talking about combinations 
of capital in restraint of trade. Now let us 
take combinations of persons to interfere 
with a man in his business and regulations 
of the State to prevent it. These, as I have 
60 


CONSTITUTIONAL RIGHTS 


said, were always unlawful in England, but 
not so on the Continent. The Guilds in 
England, while in many respects favored 
by law, were never allowed to control other 
persons 5 liberties. In Germany, and partic¬ 
ularly in France, on the other hand, they 
grew so arbitrary and so powerful that they 
overshadowed the industrial world. It was 
impossible for a man to get work at a trade 
before the French Revolution without the 
consent of some Guild, and these Guilds, 
mind you, had long ceased to be the unions 
or combinations of the workmen themselves; 
they had grown rich and aristocratic, and 
very often did no labor at all, were not 
journeymen, but mere combinations of em¬ 
ployers. The result was, that they earned 
the deserved hatred of the people; and 
Carlyle will tell you that the day of the 
French Revolution which announced the 
absolute abolition and destruction of all 
trade Guilds was welcomed with bonfires 
and the ringing of bells throughout France. 
Labor had at last become free there—in 
England it always has been. 

And so with us the Constitutions of North 
Dakota and Utah declare that “every 
61 


THE AMERICAN CONSTITUTION 


citizen of this State shall be free to obtain 
employment wherever possible, and any 
person or corporation maliciously inter¬ 
fering or hindering in any way any citizen 
from obtaining or enjoying employment 
already obtained from any other corporation 
or person is guilty of a misdemeanor.” In 
Montana and Wyoming “The rights of labor 
shall have just protection through laws cal¬ 
culated to secure to the laborer proper re¬ 
wards for his services and to promote the 
industrial welfare of the State.” In Louisi¬ 
ana “no law shall be passed fixing the price 
of manual labor.” These State Constitu¬ 
tions well express the Anglo-Saxon idea. 


62 


Ill 


ENGLISH LIBERTY AND THE FREEDOM 
OF LABOR 



‘HE general right to liberty includes 


A the right not to be punished by maim¬ 
ing or disfigurement; the right to the liberty 
of one’s motions even to the extent that one 
may freely enter or leave the country; the 
right not to be banished for any crime. 
All these rights are simple enough to under¬ 
stand and have been established in many 
centuries. No one seriously questions them 
any more, though there has been an occa¬ 
sional attempt to banish convicted crimi¬ 
nals from the States of the Union in which 
they reside. The Governor of Arkansas 
is said to have pardoned such a man on 
condition that he come to Massachusetts. 
The new Oklahoma Constitution provides, 
however, that no one shall be banished 
from the State for any crime or under any 
legal procedure—except, of course, lawful 


ENGLISH LIBERTY 


extradition under the United States Consti¬ 
tution. And the great weapon of protection 
for this part of the personal liberty right is 
the writ of habeas corpus; which exists to 
the full extent in no other than English- 
speaking countries. 

No court and no sovereign, under the 
Saxon theory, can order a free man to do 
anything against his will, or even punish 
him for not doing it by any law that he or 
his representatives in the Legislature have 
not consented to. The Norman process of 
issuing orders from the King or his Chancel¬ 
lor resulted in “Prerogative writs,” equity 
jurisdiction and the doctrine of specific per¬ 
formance, that is, requiring a man to carry 
out his contract in terms, not merely to pay 
money damages for breaking it; in Manda¬ 
mus, Injunction, the order of the Crown or 
the sovereign State to a man to do or refrain 
from doing some act apprehended—this led 
to contempt process; that is, the punishment 
of the parties so ordered for doing or not 
doing the act complained of—the great 
point being that English law never speaks 
in terms of an order from a sovereign to a 
subject; but only requires a man to pay the 
64 


ENGLISH LIBERTY 


penalty of his acts, either by punishment to 
his person, if a criminal act, or by damages, 
if in a civil court. Under the accident of 
our double sovereignty, State and National, 
and a course of events by which the great 
bulk of our business has come to be done by 
corporations chartered by the States, and not 
by individuals, and the fact that when a 
suit is between citizens of different States, 
either may carry it into a Federal court, it 
has become the usual practice of corpora¬ 
tions when complaining or complained of 
to withdraw the litigation from the local 
courts to the Federal courts, and so ulti¬ 
mately to Washington; and instead of ap¬ 
pealing to the local police authorities, or 
requiring the State officials to maintain the 
peace of the State, it is found a more con¬ 
venient and certain remedy to go into a 
Federal court for an injunction and then, 
under this contempt process, secure the 
imprisonment of anyone who disobeyed it. 
The abuse of this remedy has led to the 
demand for jury trial in all cases of con¬ 
tempt of an injunction, which seems to be 
going too far. Nevertheless, the objection 
is an old one. For instance, under Edward 
6 5 


THE AMERICAN CONSTITUTION 


III, as early as the year 1331, we find a 
statute restraining the chancery jurisdiction 
and forbidding the arrest or conviction of a 
man or the forfeiture of his property with¬ 
out a jury trial in a common-law court. 

The one thing, however, which the in¬ 
junction cannot do is to order a man to 
carry out a contract of personal service. 
Anglo-Saxon notions of individual freedom 
prevailed over the Norman Chancellor in 
this one exception; so that to this day a 
man who breaks a contract for personal 
service is only liable in damages. He can¬ 
not be forced by any court to render the 
service; and in the same way indefinite 
service for a long period of time is, under 
our ideas, a contract of slavery; and it may 
not be enforced in any court. 

An even greater side of the personal lib¬ 
erty right, more important at least to-day 
because more likely to be denied, is the right 
to labor and to trade; to acquire thereby 
property, to exercise one’s faculties in any 
lawful way, to increase one’s comfort and 
one’s powers by the acquisition of wealth 
or the exercise of property rights. This 
right was recognized in the express words 
66 


ENGLISH LIBERTY 


of Magna Charta, where it says that “no 
free man of England shall be deprived of his 
freehold or of his liberties or of his free cus¬ 
toms for this expression, under the law 
of the time, was understood to mean the 
right to labor at any trade, to earn one’s 
living in any lawful manner; and the right 
to be protected in this from any hindrance 
of others, either physical or by contract in 
restraint of trade; from combinations of the 
Guilds, or from monopolies created by the 
State. All the cities, boroughs and ports 
of England were to have all their ancient 
liberties and free customs. A man who 
labored at a trade for a year and a day was 
necessarily a free man, in England, even as 
early as the Norman Conquest, although 
he had been a slave or a villein before. The 
Guilds of a trade, while they were recognized 
and expressly protected in their chartered 
liberties, were always restrained from cre¬ 
ating by-laws in restraint of trade, or which 
should lead to combinations against others 
in the same trade, or of other trades, not to 
buy of or sell to them—what we should call 
a boycott. 

In 1305 we find the first statute against 
67 


THE AMERICAN CONSTITUTION 


conspiracy. In 1360 another statute, of 
Edward III, for the first time allows work 
to be done in gross , that is, by contract. 
Before that, under the statute, all laborers 
had to be paid by the day. And it declares 
void all alliances and covins between masons, 
carpenters, thatchers, etc., or between Guilds, 
chapters and ordinances. Repeated statutes 
of this sort were passed, until, in 1436, we 
find the exact modern words used, “ All by¬ 
laws in restraint of trade are declared un¬ 
lawful and void. No guilds nor corpora¬ 
tions shall make unlawful ordinances as to 
the price of their wares for their own profit 
and to the common hurt of the people.” 
This sort of statute is repeated many times, 
and in 1503 we find a new provision that the 
by-laws of the Guilds restraining suits at 
law are unlawful; that is to say, if a man is 
deprived of his rights in a trade union, no 
by-law of the union may prevent his appeal¬ 
ing to the courts. 

The right of a man to get fair wages for 
his labor was, however, denied for many 
centuries in England. The principle that 
a trade combination or an individual has 
no power to make undue profits, could not 
68 


ENGLISH LIBERTY 


corner the market or buy up any necessary 
of life and then hold it at an exorbitant 
price, was very early established, indeed 
quite as early as the twelfth century, and 
it had probably been law before that; but 
for many centuries also the attempt to 
regulate wages was made in England, and 
it succeeded in all Continental countries. 
Wages there were fixed, if not by the em¬ 
ployer, at least by some functionary of the 
State in his interest. This had probably not 
been the case in England, as to free labor; 
but early in the fourteenth century the plague 
of the Black Death nearly depopulated the 
country, and after this labor was so scarce 
that in 1349 the first Statute of Laborers 
was passed, which required everybody to 
work for the old wages, that is, the wages 
before the Plague; and in the following year 
this was fixed by law at one penny a day for 
common laborers, three pence a day for 
mowers, two or three pence for carpenters, 
three or four for masons, one-half a penny 
for servants, and so on. It is probable that 
these wages represent something like sev¬ 
enty-five cents a day in purchasing power. 
At that time the Black Prince, the head of 
69 


THE AMERICAN CONSTITUTION 


the army, was paid twenty shillings a day; 
that is to say, about eighty times as much 
as a skilled laborer—less in proportion than 
we pay the President, but more than we pay 
governors or the judges of our Supreme 
Courts. This notion of fixing wages had 
now got a firm hold. It is repeated over 
and over again by statutes in the following 
two centuries. Able-bodied laborers were 
compelled to work; and they were com¬ 
pelled to work at those prices which were 
declared lawful. A century later they did 
give up the attempt to fix the exact price by 
law, but provided that the wages of artisans 
and laborers should be fixed twice a year 
by the justices of the peace. This law in 
theory existed at least until Elizabeth, and 
was not expressly repealed until 1869. The 
fight of the working classes to prevent the 
fixing of their wages by law was waged for 
many centuries and had many consequences. 
One of the most important of these is that 
in England a strike was, for many centuries, 
considered an unlawful conspiracy. It is 
easy to see why; when the rate of wages was 
fixed by law, and a penalty imposed for pay¬ 
ing or demanding more, the combination to 
70 


ENGLISH LIBERTY 


obtain more became an unlawful conspiracy; 
that is, a combination with an unlawful end. 
This notion of the illegality of strikes only 
disappeared from England in the first 
quarter of the nineteenth century. Fort¬ 
unately, we never had it in this country; 
nor did we ever consider in the United States 
or any of them, at least until very recently, 
that the wages of labor could be fixed by 
law. In the Louisiana Constitution and one 
or two others there is an express provision 
that the rates of wages never shall be fixed 
by law. A recent amendment in New York, 
however, requires that the State or any 
municipality—town or city, or contractor 
on public work—shall pay the same wages 
that are usually paid in the same trade at 
the same place and time. 

The same fight for free contract was 
carried on in France and other countries in 
vain; wages fixed by the State, employment 
monopolized by the Guilds, existed and con¬ 
tinued to exist until wiped out by the French 
Revolution. We now, therefore, have to 
add to our liberty right of free trade or labor, 
the right of free contract: that is the right 
of a man to demand such wages as he can 
7 1 


THE AMERICAN CONSTITUTION 

get and to refuse to work for them if not 
satisfied; the right in the same manner to 
work as many or as few hours as he choose, 
which is practically the same thing; and the 
right of free employment, that is, the right 
not to have any trade made a close corpora¬ 
tion. Hours of labor were curiously regu¬ 
lated in early times. Under Queen Eliza¬ 
beth they were fixed, between March and 
September, from five a.m. to seven p.m., 
with two and a half hours “for meal times 
and drink times and two and one-half hours 
for sleep”; from September to May the hours 
were from dawn to sunset—and this is still, 
or was recently, the law in the State of 
Georgia. Wages were still to be fixed by 
a justice of the peace. No one might use 
any manual art who had not been appren¬ 
ticed to the same. Masters were prohibited 
from discharging servants before their term 
without reasonable cause or a quarter’s 
warning; and no servant could be hired 
without a testimonial. I have no time for 
more of these things; suffice it to say in 
brief that the conditions and rights of labor 
were for several centuries attempted to be 
regulated by law. As a consequence of 
72 


ENGLISH LIBERTY 


this, combinations of workmen to alter 
wages or conditions of employment were 
thought illegal. But this latter notion 
never existed in the United States. And, 
finally, the whole attempt at regulation by 
law was given up, and the entire liberties 
of the laboring classes won back, even in 
England, early in the nineteenth century. 
One sometimes wonders whether our labor 
unions already wish to return to it. 

Monopoly had much the same course, but 
was much more quickly got rid of. It was 
always abhorrent to English notions; and 
there had been no event like the Black 
Death, no pretext of necessity, which caused 
State interference with the right to free trade 
in this particular. There probably never 
had been any legalized monopolies in Eng¬ 
land until about the reign of Queen Eliz¬ 
abeth. Anxious to raise money for her 
wars, she discovered the principle of grant¬ 
ing patents; that is to say, giving licenses 
to a man or a company to tax a certain trade 
or business, or to deal in a certain com¬ 
modity, or manufacture a certain article, 
with the implied promise that no one else 
should be allowed a similar right. In 1606 
73 


THE AMERICAN CONSTITUTION 

patents began to be granted for the exclusive 
sale of articles, even which were not in¬ 
ventions, but it was only twenty years later 
(1623) ^at the great Statute of Monopolies 
was passed, prohibiting such monopolies 
both granted and to be granted, giving 
remedy in double or treble damages to any¬ 
one injured—just as we to-day under the 
anti-trust acts—making exceptions only of 
the charters to trade Guilds, tavern licenses 
and patents for inventions and copyrights. 
This, with the exception of the double 
damage clause, was probably the common 
law; but the beauty of the statute was that 
it prohibited the King from dispensing with 
the common law by granting such licenses. 
Monopolies in England had a very brief 
sway, therefore, under the law; and it is 
doubtless one of the constitutional rights 
of an Englishman, and hence of an Ameri¬ 
can, to be protected from them. I need not 
point out that such was not the case in Con¬ 
tinental countries, where monopolies have 
always been part of the very fabric of so¬ 
ciety. State monopolies, the most dangerous 
kind, exist in all European countries to-day. 
In Austria, Italy, and, I think, France, the 
74 


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trade in salt and the trade in tobacco is a 
State monopoly; and in nearly all countries 
individuals or bodies of men were given 
exclusive charters, either by the State, or by 
the town or city, to exercise their industry. 
Such is the case in all South American 
countries—you can do almost nothing with¬ 
out a State license—a “ concession.” In this 
country and in England, however, monopo¬ 
lies created by the State or Nation are just 
as unlawful as any other kind. A man 
has the constitutional right to exercise any 
trade, go into any business, and not to be 
competed with by the State, or have other 
individuals or corporations favored by spe¬ 
cial license or privilege at his expense. Ab¬ 
stractly stated, this means that individu¬ 
alism and not socialism is the principle on 
which our government is based. Socialism 
of any kind has never been recognized or 
permitted under English or American law. 
The moment any statute or any combina¬ 
tion was perceived to embody a socialistic 
principle, it was held unconstitutional, or 
unlawful, as the case might be. This is so 
fundamental that there are, even in all our 
forty-six States, only three cases in which, 
75 


THE AMERICAN CONSTITUTION 

so far as I know, the principle of socialism 
is discussed abstractly. Some ten years 
ago a Texas judge refused to naturalize an 
immigrant who was a professed socialist, on 
the express ground that the Constitution 
of the United States required a republican 
form of government; and that this is not con¬ 
sistent with socialism. There is no express 
provision on socialism, using the word, in 
the Constitution of any State. The new 
Oklahoma Constitution declares that the 
right of the State to engage in any occupa¬ 
tion or business for public purposes shall 
not be denied or prohibited, except that it 
shall not engage in agriculture. This, in¬ 
deed, is the declaration of a socialistic prin¬ 
ciple, at least in possibility, which may have 
caused the President to question whether it is 
compatible with a republican form of gov¬ 
ernment. While, on the other hand, the 
new States of Washington and Utah ex¬ 
pressly say that the object of government is 
to protect and maintain individual rights. 
In the older States the provisions concern¬ 
ing liberty and property were doubtless 
considered sufficient to cover this. The 
State of South Carolina established a mo- 
76 


ENGLISH LIBERTY 


nopoly in the liquor-selling business and at¬ 
tempted to carry on that trade itself. This, 
of course, was state socialism applied to the 
selling of intoxicating liquors. The United 
States attempted to impose internal revenue 
taxes on the State, as it would upon any other 
manufacturer or dealer in liquors. The 
State resisted payment on the ground that 
it was a sovereign State, hence could not be 
taxed, and the case went to the Supreme 
Court. There was a great deal of argu¬ 
ment on the question whether a State, as 
such, had the right to engage in any gainful 
business, but the case was decided upon 
other grounds. And in Massachusetts and 
several other States the carrying on by the 
State or by cities or towns of gainful trades 
or avocations necessarily competing with 
the industry of private individuals has been 
declared unlawful and the laws permitting 
such, unconstitutional. You will remember 
the case in this State was that of Municipal 
Coal Yards, that is, having the city engage 
in the coal business, but there have been in 
other States several other examples. So we 
conclude that the right to trade is not only 
protected, but it is unlimited. There can 
77 


THE AMERICAN CONSTITUTION 


be no combination made against it, nor any 
privilege granted, even by the Government, 
which shall interfere with it; and the right 
to trade, as well as the right to labor, 
necessarily involves the right to make con¬ 
tracts concerning the same—which we call 
the right to freedom of contract. 

There is another cardinal liberty right 
which bulks very largely in the popular 
mind to-day, but cannot be traced, at least 
as now understood, to any very early ex¬ 
pression in England—that is the right to 
equality. The notion of equality was, as 
you know, very strong at the time of our 
Revolution, and still more strong in the 
French Revolution; and Tocqueville and 
others have often pointed out that in an ex¬ 
treme democracy it is apt to be valued more 
than even the right to liberty itself. In 
other words, democracies, and legislatures 
representing them, will sacrifice individual 
rights, and impose very tyrannous laws, 
in the aim of securing a fancied equality. 
But the very word equality appears for 
the first time in the Declaration of Inde¬ 
pendence, which only says that “All men 
are created equal.” Equality before the 
78 


ENGLISH LIBERTY 


law—not equality of position and condition 
—was, indeed, an English principle almost 
as old as any that we have. In the earliest 
times of which we have any glimpse, in the 
times written about by Tacitus, the Teu¬ 
tonic people were divided into three classes 
—nobles, freemen and laborers attached to 
the soil—but they were probably always 
treated equally before the law, except, in¬ 
deed, that, as I have told you, the fine paid 
for the murder of a man varied according 
to which of these three classes he belonged 
to, and in the same manner when they tried 
people by their oaths (compurgation, as it 
was called) the oath or testimony of a noble 
was worth ten times as much as that of a 
simple freeman, and so on: but even this 
inequality disappeared very soon after the 
Conquest, so that as early as the reign of 
Henry II the express principle is laid down 
in the most forcible manner in one of 
his great charters, that all Englishmen are 
free and shall be treated equal before the 
law. Another right of equality results from 
this very right to labor—to acquire property 
unmolested—that we have been discussing; 
that is what the President so well calls 


79 


THE AMERICAN CONSTITUTION 


“Equality of opportunitythe equal right 
of any man to engage in any trade or busi¬ 
ness with as good a chance as anybody else 
and be protected from any confederation, 
any combination in restraint of trade, any 
trust, or any special privilege granted by the 
State or by the Nation. On this principle, 
also, all public service must be open to all 
men equally without distinction of rank or 
station, and all schools or other public in¬ 
stitutions be open to everybody in the same 
way, or at least equal privileges provided. 

Finally we come to the right of property. 
This is almost as old as the right to personal 
liberty. In fact, it may almost be said to 
result from it, as it certainly results from 
the right to labor. There is no recorded 
history of a time when the Teutonic (later 
the Anglo-Saxon) people did not recognize 
this right to property quite as firmly as we 
do to-day. The only difference was, that 
in very early times some of the land was 
held in common; not all, but some. Property 
in land seems to have preceded property 
in what we call “Personal property”; this 
merely for the reason that at first there was 
very little of the latter. A man always 
80 


ENGLISH LIBERTY 


owned his spear, his clothing and personal 
belongings. His house or hut, of course, 
was on his land. Other than this, the 
earliest personal property was cattle and 
domestic animals; and there is no record of 
a time when these might not be owned in 
private ownership. Our word “chattels” 
is doubtless a corruption of the other word 
cattle, for this was the earliest subject of 
property. There are express statutes, how¬ 
ever, recognizing personal property long 
before Magna Charta; and that great docu¬ 
ment recognizes the right of property, both 
real and personal, in many clauses. It 
was not necessary to define the right to 
property in abstract terms. But even this 
is done in most of our modern constitutional 
documents, notably the Virginia Bill of 
Rights of 1776, and in the Federal and State 
Constitutions. 

The right to property needs very little defi¬ 
nition. It is, of course, inconsistent with 
any scheme of socialism or of communism. 
These, by the way, are not the same 
thing, though often confounded. Com¬ 
munism merely means that the institution 
of private property shall not be recognized, 
81 


THE AMERICAN CONSTITUTION 


but everything shall be owned by the State. 
Socialism goes much farther than this, and 
says that the State shall also control the 
actions, or the means of livelihood, of the 
individual. In other words, communism is 
merely aimed at the property right; social¬ 
ism is aimed at the broader liberty right. 

The individual, in England and America, 
therefore, has an absolute right to property, 
either the profits of his labor (the only kind 
recognized in the Oklahoma Constitution), 
or to property lawfully acquired in any 
other manner (in the Constitutions of all 
other States and of the Nation). And hav¬ 
ing the right to property, he has the right 
to make any contract, with whomsoever he 
choose, concerning it; either for the use of 
the same, or in order to acquire new prop¬ 
erty. This, again, we call the right to 
freedom of contract; but while the right 
itself is clear enough, the methods in which 
it has been enforced and the methods in 
which it has been interfered with deserve 
some study. 

The three great principles in the English 
Constitution which concern property in its 
relation to the government are, first, that 
82 


ENGLISH LIBERTY 


Englishmen cannot be taxed without their 
consent as expressed in their legislature. In 
other words, the King can impose no tax 
except under a law passed by Parliament. 
The second, that the object of all levies, the 
end for which all moneys are raised by law, 
must be the general good of the people, that 
is, the good of the people, not of any one 
person, even the King, nor of any particular 
class, such as the nobles or the merchants. 
The third, also expressed in Magna Charta, 
is that no man’s property shall be taken 
away or damaged, even for public uses, for 
the use of the State, without full compensa¬ 
tion; and we have added to this principle 
that the compensation must be paid before 
the taking, and the amount determined by a 
jury. The first two principles were so dis¬ 
tasteful to the Norman Kings that, while 
clear in the charter of John, they were care¬ 
fully dropped out a few years later from 
the charter of Henry III, and it took a cen¬ 
tury or so to get them back—in the Confir¬ 
mation of Charters of Edward I. This prin¬ 
ciple, that money can be only taken from a 
man under any law by the State or by any crea¬ 
ture of the State, with his own consent as ex- 

83 


THE AMERICAN CONSTITUTION 


pressed by a legislative body in which he is 
represented; and the other principle, that 
all the revenues of the government must be 
collected for the good of everybody and not 
for any particular class, have been of im¬ 
mense importance in our history. They, 
in large part, brought on both the English 
and the American Revolution, and have by 
no means ceased to be important to-day. 
And our Constitution goes a step beyond 
the English in that it effectually denies to 
the Central Government any direct taxation 
at all. 

The last of our natural rights is the right 
of conscience; the right to the free exercise 
of one’s own religion, the right not to be 
compelled to adopt any religion, or to pay 
taxes for any church; and the right not to be 
deprived of any privilege or any office on 
account of one’s religious sentiments. I 
need say no more of this. As you know, 
it is the very principle which brought about 
the settlement of our country; and although, 
at first, our Puritan ancestors endeavored to 
enforce their own religion or their own sec¬ 
tarian belief on others, that effort was soon 
given up, and the denial of any such attempt 
84 


ENGLISH LIBERTY 


forms one of the corner-stones of the Decla¬ 
ration of Independence and the Federal 
Constitution. This last right, you probably 
know, has never even yet been declared a 
constitutional right in England, though the 
political tendency for the last two centuries 
has been towards general religious freedom. 
The established church, however, still re¬ 
mains. 

Now, in closing our discussion of these 
cardinal rights, the right to law, personal 
liberty, trade and labor, equality, property, 
religion, and, we might add, local self-gov¬ 
ernment—I must accentuate the fact that 
one great principle is common to all of them. 
Whereas other rights given to or retained 
by the people under our system are matters 
which may be altered at the will of the ma¬ 
jority, matters which cannot be enforced 
to their full extent by one individual— 
certainly not by one individual as against 
the Government—everyone of these cardinal 
rights can be enforced just as much by the 
individual against a majority or even against 
the Government as against any other one 
fellow-citizen. Under our theory nothing 
can change or take away from an English 
85 


THE AMERICAN CONSTITUTION 


freeman any of these cardinal rights. Vir¬ 
ginia and other State Constitutions say that 
these rights are inalienable and that govern¬ 
ment itself is instituted to secure them. 
They cannot be supposed to be surrendered 
by the people when they came into this or 
any government, because no equivalent can 
be given for them. 

But, besides these natural rights, there are 
other constitutional rights of English free¬ 
men, many of which are quite as old, which 
only differ from the natural rights in that 
they are rather political, military, or legal, 
than essential attributes of human liberty. 
I have no desire to tire you with a full cata¬ 
logue; but some of them are too important 
to omit. First is freedom of speech and 
freedom of the press, which I need not dwell 
upon; and (perhaps as a consequence of this) 
the great political right of the people to as¬ 
semble and consult together; and to petition 
the Government for redress of grievances. 
Now this is a right of immense importance; 
and this also does not exist in Continental 
countries. Only last week in this very hall 
Abbe Klein was complaining that it was 
almost impossible for his party to make 
86 


ENGLISH LIBERTY 


effective opposition to the radicals because 
this right did not exist in France; and we 
remember the recent executions of thousands 
of Russian subjects for presuming to exer¬ 
cise this right. And even in our own coun¬ 
try the Chief Magistrate has recently quali¬ 
fied with the term of conspiracy an alleged 
combination of citizens to oppose or pre¬ 
vent the nomination of a certain man to 
succeed him. A conspiracy is a criminal 
or unlawful combination. A combination 
of English or American citizens to nominate 
a certain man for office—or even to oppose 
the nomination of a certain man—is not a 
conspiracy, but the exercise of a sacred 
political right. Cromwell, in his later des¬ 
potic years, termed it a conspiracy; so Napo¬ 
leon III, who dispersed such assemblies at 
the point of the bayonet, and the Czar, who 
breaks up such combinations by imprison¬ 
ment or execution. But it is one of our 
dearest liberties. 

The right to bear arms is another cardinal 
right of English freemen, dating back to the 
days when every man might execute the 
law for himself, reaffirmed in later days as 
against a tyrannical government, while to 
87 


THE AMERICAN CONSTITUTION 


the Government, the employment of mer¬ 
cenaries—later, standing armies—is always 
forbidden. Standing armies were always 
intolerable to the English people. Even 
now, in England, the maintenance of the 
British army depends on the annual vote 
of the House of Commons; so with us it 
must be voted once in two years, or by every 
Congress. Yet we have recently heard from 
one of our generals that our imperial career 
may make conscription necessary—a thing 
never yet tolerated in England. Several 
States have Constitutions forbidding the em¬ 
ployment of private companies of guards 
or the importation of “ Pinkerton men,” so- 
called, in times of strike or trouble. This is 
said to have been one of the objections of 
the President to the Oklahoma Constitution; 
but it exists in such conservative States as 
Kentucky. So, the early statute books in 
England are full of laws against “ private re¬ 
tainers.” 

Of trial by jury, I need say no word. It 
comes under the right to law, but is sepa¬ 
rately and expressly mentioned in Magna 
Charta. Congress is at present withhold¬ 
ing it from ten millions of our people in the 


ENGLISH LIBERTY 


East.—The right to serve on juries is of 
equal importance. The negroes allege that 
they are being denied it in the South.— 
The right to habeas corpus comes under the 
right to liberty; that also is being withheld 
in the Philippine Islands.—Since Magna 
Charta, no man can be tried for crime un¬ 
less a grand jury of twenty-three men find 
probable cause. This is done away with 
in all our insular possessions.—Under 
Charles I our ancestors established that 
treason should consist only of levying war 
against the state or adhering to its enemies 
and giving them aid and comfort, and be 
evidenced by some overt act to which there 
are two witnesses. It was under this right 
that even Aaron Burr was acquitted by his 
political enemy, John Marshall. Yet it 
has recently been asserted that the mailing 
of political arguments to American citizens 
might be such an overt act; and freedom of 
the press is forbidden in the Philippines.— 
The English Bill of Rights forbids pardon¬ 
ing a crime before trial. Newspapers have 
said that it was recently promised by our 
Attorney-General to the officials of a certain 
railroad.—The English people fought five cen- 


THE AMERICAN CONSTITUTION 


turies to make the judiciary independent of 
the Crown, until they finally established that 
all judges should hold office during good 
behavior, for fixed salaries not alterable by 
the King, and removable only on joint address 
of the legislature. But a democratic Sen¬ 
ator has recently introduced a bill to make 
our judges removable by the President; and 
the members of the Interstate Commerce 
Commission, with more power than most 
judges, are removable at the will of the Presi¬ 
dent.—I have mentioned but a few of these 
political rights, with the briefest statement 
of their reason; but I hope enough to show 
their importance. And every one of these 
we have shown a recent tendency to forget. 

Now are there any other natural rights, 
besides these cardinal rights we are discuss¬ 
ing, which every individual must have ? 
Kentucky and Wyoming declare that abso¬ 
lute arbitrary power over the lives, liberty 
and property of freemen exists nowhere in 
a republic, not even in the largest majority, 
and the Constitutions of most States make 
the famous statement which, after having ap¬ 
peared in the Constitutions of Massachusetts, 
New Hampshire, Virginia and North Caro- 

90 


ENGLISH LIBERTY 


lina, was adopted in the Federal Constitu¬ 
tion in the Ninth Amendment, as the people 
at the time insisted, or the Constitution as a 
whole would not have been adopted: “This 
enumeration of rights shall not be construed 
to impair or deny others retained by the 
people.” Even if the word liberty were not 
large enough to cover almost any possible 
infringement, it would probably be held, 
should our people or the people of any State 
have to face a course of oppression by any 
form of government, that these words were 
broad enough to cover any right not ex¬ 
pressly and in terms taken from the people 
and given in the Constitution itself to the 
Government it created. For our Govern¬ 
ment exists only in and by the Constitution; 
if the Constitution falls, our Government 
itself falls with it. So Hooker in his 
“Ecclesiastical Polity”—“What power the 
King hath, he hath it but by law.” 


9 1 


IV 


GROWTH OF THESE RIGHTS; THEIR 
INFRINGEMENT BY KINGS AND THEIR 
REESTABLISHMENT BY THE PEOPLE 



E have now briefly sketched the more 


▼ V important of the constitutional rights 
which appertain to the people at large, as 
distinct from those that merely have to do 
with the frame of government. Before 
coming to their adoption in our American 
Constitution, it would be well to consider 
what attacks were made upon them by the 
King or by other branches of the government 
in the years preceding that final attack by 
George III, which caused the thirteen 
colonies to revolt. Each attack led to a 
reaffirmation—always in a stronger and 
clearer form—so that, in pursuing this in¬ 
quiry, we shall find the exact shape in which 
our ancestors understood them in 1787, when 
they drew up the Federal Constitution, or in 


GROWTH AND INFRINGEMENT OF RIGHTS 


1780, when they drew up the constitutions 
of Virginia and Massachusetts. 

It will be important in the first instance 
to notice by which arm of government the 
attack was made and by what method of 
approach. From the Norman Conquest 
until the accession of Queen Victoria attacks 
upon the British Constitution were always 
made by the King or by the Executive, by 
John, Henry VIII, James I, Charles I, by 
Oliver Cromwell, in his later days,—never by 
the Parliament , who were the representatives 
of the people; except, perhaps, when the 
Long Parliament lost its head under the later 
years of Charles I, and in the earlier years 
of the Commonwealth, before Cromwell 
did away with representative government 
at the point of the sword. The judicial 
branch, not in fact being a coordinate 
branch in England but merely the creature 
of the other two, and being possessed of no 
power to set aside laws, naturally made no 
such attack. Their only action, on the 
contrary, was to stand up for the Consti¬ 
tution against the King; this they steadfastly 
and bravely did for many centuries. 

The method of approach to undermine 
93 


THE AMERICAN CONSTITUTION 


the Constitution was mainly the King’s inter¬ 
ference with other than executive duties, 
that is to say, with the Parliament or with 
the courts—trying to make the laws, or 
trying to judge them. There being no 
precise doctrine of the separation of powers 
in the English Constitution, it was easy for 
him to do this; and it was the very experi¬ 
ence of this for many centuries which gave 
our fathers the wisdom to base our own 
Constitution on this cardinal principle. 

The first attack, which began almost with 
William the Conqueror, was, of course, the 
attempt I have discussed so often of the 
Norman kings to persuade the people that 
they made the law and not the people them¬ 
selves. This was so continuous until down 
to the time of Henry VI that I need give no 
particular instance. “Even William theo¬ 
retically continued to govern as a constitu¬ 
tional king, the lawful successor of Edward, 
and in that character obliged to respect the 
laws and customs of the kingdom.” But 
practically he governed in defiance of every¬ 
thing but his own wishes. “The Govern¬ 
ment was centralized,” says Taswell-Lang- 
mead, “Local self-government was for a 
94 


GROWTH AND INFRINGEMENT OF RIGHTS 


time depressed.” Nevertheless, he was 
careful to observe the forms of a King of 
the English, and in the fourth year of his 
reign “ renewed the laws of Edward the 
Confessor—with certain additions made by 
himself for the advantage of the people of 
England.” He held three times a year, at 
the accustomed times and places, the ancient 
national assembly. 

That the people were re-asserting them¬ 
selves is, perhaps, best shown in that Henry I 
on his accession, only thirty-four years after 
the Conquest, found it necessary to issue a 
charter of liberties; and this was renewed 
by Stephen and by Henry II, though neither 
King observed it when firmly seated on the 
throne. Under John, it served in the hands 
of Stephen Langton as the text upon which 
the barons founded their claim for a restora¬ 
tion of the ancient liberties of the nation. 
Our authorities give two great constitutional 
results of Henry’s reign, both showing the 
restoration of popular rights; first, the main¬ 
tenance of the local supremacy of the State 
over the Church of Rome; second, the 
restoration of Saxon law liberties by the 
abolition of the Norman method of trial by 
95 


THE AMERICAN CONSTITUTION 


battle, and the restoration, in an improved 
form, of both the grand jury, as the only 
body competent lawfully to charge a man 
with crime, and the petit jury, by which 
alone the crime was to be tried. Star 
Chambers, Courts of Chancery, Attainders, 
Informations, were all devices contrived 
by the successive kings to get rid of the two 
juries. Guizot, the French historian, tells 
us “that juries alone kept alive the germ 
of free institutions at the time when the 
predominant influence of the king in the 
judicial order produced this centralization.” 
The kings, however, at that time, rather 
devoted their energies to the invention of 
ways to raise money by excessive taxation 
without respecting the ancient constitutional 
principle that taxes could only be imposed 
by the common consent of the realm and 
for the benefit of the people as a whole. 
This, curiously enough, was the first, as it 
was the last, effort of the English kings to 
undermine the liberties of the people. Tax¬ 
ation without legislative consent was the 
great object of the Norman kings, just as 
taxation without representation was the 
purpose of the last English king who seri- 
96 


DEVELOPMENT OF THESE RIGHTS 


ously endeavored to do away with con¬ 
stitutional principles. 

When we come to John, the legal chron¬ 
iclers complain that he set at defiance all 
laws. The people were compelled to make 
a stand, not so much for constitutional 
government as for personal liberty. Tyr¬ 
anny always provokes democracy, and the 
assembly at St. Albans called together to 
oppose John’s pretensions, is the first his¬ 
torical instance of the summons of repre¬ 
sentatives of the common people to a na¬ 
tional council of England. One of the 
things they complained of was the King’s 
Court, which, during the Norman reigns, 
had drawn to itself the whole central ad¬ 
ministration of justice; not only did it hear 
all cases on appeal, but, by virtue of special 
writs or as a special favor, the King would 
call up cases from the local courts to be 
heard in his own courts according to such 
new methods as his advisers might invent. 
This court followed the person of the King 
wherever he went. It resulted in a per¬ 
fect centralization of justice, but probably 
little greater in civil causes than would be 
the case if all our corporations did business 
97 


THE AMERICAN CONSTITUTION 


under a Federal charter. Hannis Taylor 
says: “As soon as the principle was firmly 
established that the king was the fountain 
of justice and that all courts were the king’s 
courts, there was nothing to prevent the 
king from invading any jurisdiction and 
withdrawing from it any cause whatsoever.” 
And that same dispute we have now once 
more, as a consequence of the Railroad 
Rate Regulation Act, and the trust laws, 
between our States and the Federal power. 
The result of all this, in England, was two 
articles in Magna Charta: “Common pleas 
shall not follow the King’s Court, but be 
held in some certain place”; and again no 
royal writ was in future to be issued so as to 
cause a free man to lose the right to trial 
in his local court. Another article is not¬ 
able, for it says that “justices shall only be 
appointed of such as know the law and mean 
duly to observe it.” And, finally, the liber¬ 
ties of the charter were extended to “all 
men in our kingdom” without distinction 
of rank or station. 

Immediately after being compelled to 
grant the Great Charter, John applied for 
aid to the Pope, who declared it void; but 
98 



DEVELOPMENT OF THESE RIGHTS 


John soon died, and Henry III confirmed it. 
But he omitted from his re-issue of the 
Charter the great clauses forbidding tax¬ 
ation without the consent of the people as 
expressed in Parliament, and also the quali¬ 
fication that judges should be learned in 
the law; and this was the next notable at¬ 
tack on the people’s liberties. The lost 
clauses were only restored in the Confirma¬ 
tion of Charters granted by Edward I in 
1297. Magna Charta was confirmed thirty- 
seven times by seven successive kings, end¬ 
ing with Henry VI, not to mention the great 
confirmation forced upon Charles I in the 
Petition of Rights and again granted by 
William of Orange in the Bill of Rights. 

The third attack of the Norman kings 
was upon the judiciary. Henry II insisted 
on sitting in court and dispensing justice; 
and this was done by all the kings down to 
Edward II. Edward IV, we are told, sat 
in the King’s Bench for three consecutive 
days in order to see how his laws were exe¬ 
cuted, but it is not said that he interfered 
in the proceedings. Finally, when James I 
sat personally in court and wished to in¬ 
terfere, he was told by the judges that he 
99 


THE AMERICAN CONSTITUTION 


could not deliver an opinion. This ended 
the interference of the Executive until the 
final great battle between the King and the 
Chief Justice in 1615, of which later. 

During this earlier time the people were 
mainly occupied in winning back their local 
courts, their right to lawmaking, and the 
institution of the grand and petit jury. 
Even when the king allowed his judges to 
go on circuit, they were employed as his 
agents for squeezing money out of the peo¬ 
ple, of which, under Henry III, the baron¬ 
age complained. When, too, the jury was 
finally established, the king got back at the 
people by inventing a method of attaint, 
that is, punishing the jury for a false verdict. 
This was frequently employed by the Tudor 
and Stuart kings. One of the most inter¬ 
esting cases happened as late as Charles II. 
William Penn, the famous Quaker, was 
prosecuted for having preached to a large 
assembly in Grace Church Street. The jury 
acquitted him and were accordingly fined 
twenty-six pounds apiece, quite as much as 
a thousand dollars of our money, and the 
foreman was committed to prison for re¬ 
fusing to pay. He sued out his writ of 


100 


DEVELOPMENT OF THESE RIGHTS 


habeas corpus. The defense was that he 
had been punished for finding a verdict 
against the evidence and the direction of the 
court. Chief Justice Vaughan held the 
ground to be insufficient and discharged the 
prisoner—so this was the end of the attempt 
of the King to interfere with juries, after 
he had failed to limit the people to his own 
courts. 

His next attempt I anticipated in an 
earlier lecture. The King’s great officer, 
the Chancellor, unconstitutionally assumed 
jurisdiction in common-law cases. Men 
were arbitrarily imprisoned on injunction 
process without indictment, and their land 
seized into the King’s hands. A series of 
statutes were passed restraining this illegal 
invasion upon the rights of property and 
personal liberty. The statutes proving in¬ 
sufficient, they filed repeated petitions to 
the King, who returned an unsatisfactory 
answer, and it was not until 1352 that they 
obtained the enactment of a statute which, 
expounding the words of Magna Charta, 
explicitly declares that “ whereas it states 
that none should be imprisoned unless by 
the law of the land, it is now established that 


101 


THE AMERICAN CONSTITUTION 


from henceforth none shall be taken by 
petition or suggestion made to the King 
unless by indictment of good and lawful 
people of the neighborhood.” But in 1389 
they had again to petition Richard II that 
the Chancellor should make no ordinance 
against the common law, to which the King 
returned the unsatisfactory answer, “Let it 
be done as has been the custom, provided 
the royal prerogative be saved” Under 
Richard II, a few years later, the barons 
protested that they would never suffer the 
kingdom to be governed by the Roman law, 
and the judges prohibited it from being any 
longer cited in the common-law tribunals. 
Yet under Henry VIII it is said one-third 
of England was deprived of the common 
law. The abuse of the Chancery, particu¬ 
larly on its criminal side, went on; the Court 
of Star Chamber continued until abolished 
by Parliament under Charles I. It was then 
identical with the Privy Council; so that 
the same body of men exercised executive 
and judicial functions. This court was 
held competent to pronounce any sentence 
short of death; and the fines were frequently 
of enormous amounts, and in many cases 


102 


DEVELOPMENT OF THESE RIGHTS 


proved ruinous to the sufferers. So, by one 
path after another, but mainly by attacks 
upon the judiciary, the Tudor and the 
Stuart kings attempted to make the royal 
will the only law, until the last of the Stuart 
kings overthrew his dynasty in that attempt. 

Richard II worked mainly through a 
corrupt bench of judges and a packed House 
of Commons; his favorite method was to 
secure the opinion of the judges beforehand 
on a question of law in his favor, then seize 
the most obnoxious members of the opposi¬ 
tion and send them to those judges for trial. 
This also resulted in the loss of his kingdom 
a few years later. He finally persuaded 
the Commons practically to abdicate their 
powers in favor of a board of eighteen com¬ 
missioners. This scheme worked perfectly, 
and caused no Parliament to be called for 
many years. This committee of eighteen 
issued ordinances at the King’s will, granted 
taxes, decreed treason against all who dis¬ 
obeyed them, and authorized the King to 
dispense with statutes at pleasure. The 
people stood this for thirteen years and 
then he was deposed by that Parliament 
he had failed to call together. 

103 


THE AMERICAN CONSTITUTION 


Under the five kings of York and Lan¬ 
caster the nation was busy with civil or 
foreign wars. In times of war the Consti¬ 
tution is silent. In militant civilization it 
has no part. Consequently we find little 
growth at this time. In nearly a hundred 
years there are but two things to note. The 
people succeeded in re-establishing the in¬ 
valuable right of members of Parliament not 
to be questioned or punished for their speech 
in any other place. Freedom of speech, at 
least in Parliament, was thus established. 
On the other hand, the first disfranchising 
statute ever passed in England, putting a 
property qualification on the right of suffrage 
so that noDody couid vote who had not land 
to the value of forty shillings a year, was 
passed under Henry VI. Up to that time 
they had manhood suffrage in England. 
This change practically confined the govern¬ 
ment of the country to the larger land own¬ 
ers, for forty shillings a year then was quite 
forty pounds of our money, and the people 
have never quite got back all their early 
freedom in this particular, even at the pres¬ 
ent day. 

The Tudor period is an age of great ma- 
104 


DEVELOPMENT OF THESE RIGHTS 


terial prosperity owing to the discovery of 
America and the passage to the East Indies. 
“ Intent upon the acquisition of private 
gain,” says Taswell-Langmead, “merchants 
were, for the most part, satisfied to leave 
questions of government to others,” much 
as has been the case here in the last ten 
years. On the Continent, the introduction 
of standing armies enabled sovereigns to 
do away with national assemblies. The free 
constitutions of Castile and Aragon were 
successfully overthrown. The States Gen¬ 
eral of France, after languishing for a time, 
ceased altogether in 1614, and were only 
resuscitated for their final meeting, one 
hundred and seventy-five years later, on the 
eve of the great Revolution. The main 
reason that Parliamentary institutions did 
not pass away also in England was her 
insular position, which, rendering her se¬ 
cure against a foreign invasion, made it un¬ 
necessary to employ regular troops. Ma¬ 
caulay tells us that even as late as Henry 
VIII there were only two hundred paid 
soldiers in England; and the great historian, 
Freeman, tells us that the personal char¬ 
acter of Henry VIII had something to do 
105 


THE AMERICAN CONSTITUTION 


with this. Tyrant as he was, he was yet 
animated by a scrupulous regard for the 
letter of the law. While his fellow-tyrants 
abroad were everywhere overthrowing free 
institutions, Henry showed them the deepest 
outward respect. He sheltered himself al¬ 
ways under the letter of the law; otherwise 
his conscience seemed to be uneasy. A 
subservient Parliament made it possible to 
do this and still obtain all that he wanted. 
When Henry had cut off Ann Boleyn’s head 
on one day and married Jane Seymour 
the next morning, this Parliament carefully 
listened to a speech from Lord Chancellor 
Audley, who assured them that the King 
did not do it “in any carnal concupiscence’’ 
and Parliament immediately proceeded to 
pass an act declaring that it was all done “of 
the King’s most excellent goodness.” Dr. 
Freeman says we had got into a state of 
things which our fathers called “unlaw,” 
when judges were ready to declare anything 
to be the law, juries ready to find any verdict, 
and bishops ready to declare anything true 
and orthodox at the will of the mere ca¬ 
pricious despot on the throne. Therefore, 
there is little formal attack on the liberties of 
106 


DEVELOPMENT OF THESE RIGHTS 


the people under Henry VIII which appears 
in the statute book. All he found it neces¬ 
sary to do was to control Parliament, and 
this he did by interference with elections, 
thus infringing on at least one constitutional 
principle, namely, that all elections shall 
be free. Although the power of the Crown 
increased until it acquired dangerous pro¬ 
portions, the want of a standing army acted 
as a perpetual restraint which, says Ma- 
cauley, “while it did not protect the indi¬ 
vidual, secured the nation against general 
oppression/’ Under Henry VII, however, 
the criminal jurisdiction of the Court of 
Star Chamber had been revived and the 
persecution of the Puritans roused up a 
spirit of opposition to the Crown so that the 
struggle for religious freedom led to a fight 
being waged for political freedom, while 
Henry VIPs effort to tax the people had 
provoked armed opposition—“taxation be¬ 
ing the one point which the masses of the 
people seem to have considered worth fight¬ 
ing about.” 

The main attack, therefore, under Henry 
VIII, is the subjugation of Parliament; not 
so much the confusing of the legislative with 
107 


THE AMERICAN CONSTITUTION 


the executive, for Henry was nearly always 
careful to act under the forms of law, but 
the interference with elections and the pack¬ 
ing of Parliament in favor of the King and 
his policies. This came to a head under 
Cardinal Wolsey in 1523. Parliament was 
asked to impose the then huge tax of 800,000 
pounds, and being reluctant, Cardinal Wol¬ 
sey himself, with pomp and retinue, with all 
his followers, his maces, his pillars, his pole 
axes, his cross, his hat, and the great seal, 
too, marched down personally to Parliament 
and was admitted. The Commons received 
his harangue in silence, even when Wolsey 
demanded an answer; but at last the Speaker 
falling on his knees with much reverence, 
excused the silence of the House, “abashed,” 
as he said, “at the sight of so noble a person¬ 
age”; but he then proceeded to show the 
Cardinal that his coming thither was 
“neither expedient nor agreeable to the 
ancient liberties of the House, it being the 
usage of the Commons to debate only 
amongst themselves.” As a result of this 
brave assertion, the King did not summon 
Parliament again for seven years. 

The next attack was the invention of 
108 


DEVELOPMENT OF THESE RIGHTS 


bills of attainder, of which I spoke in the 
first lecture. A bill of attainder is an act 
of Parliament finding a man guilty, or de¬ 
priving him of civil rights, without a trial of 
any sort. Thomas Cromwell, by the King’s 
express command, inquired of the judges 
whether, if Parliament should condemn a 
man to die for treason without hearing him 
in his defence, the attainder could be dis¬ 
puted. The subservient court replied that 
while it would form a dangerous precedent, 
Parliament was supreme and no attainder 
could be subsequently questioned in a court 
of law. And by the irony of fate, Cromwell 
was himself the first to perish by such a bill. 
But the device of attainder, thus established, 
was used both by Henry VIII, and later by 
the Stuarts, as a convenient method of get¬ 
ting rid of political adversaries; and while 
it has never been forbidden in the British 
Constitution, it inspired our ancestors with 
so much horror that it is with us doubly 
forbidden in the Federal Constitution, first 
to the Federal Government and then to the 
States. 

The next effort of Henry VIII to get rid 
of constitutional liberties, while respecting 

109 


THE AMERICAN CONSTITUTION 


the form of law, was to secure an act giving 
his own proclamations the force of law. 
This, of course, is utterly counter to the 
English Constitution, as it had been won 
back from Norman kings in the preceding 
four hundred years. Nevertheless, the power 
of declaring laws or ordinances by the King, 
or by the King in Council, remained until the 
time of George III; and was one of the things 
the Declaration of Independence complained 
of—as it did also of the corresponding power 
of the King to suspend laws at his own dis¬ 
cretion. Both were complained of in our 
Declaration of Independence and are for¬ 
bidden by our own Constitutions. The 
President can make no law and he can sus¬ 
pend no law; nor can he lawfully promise 
that the law shall not be enforced. 

Under Edward VI the law of treason 
which had been stretched very far under 
Henry VII, was at first brought back to 
constitutional principles, but afterwards re¬ 
enacted in a worse form than ever; until 
Parliament interfered and enacted that no 
person should be indicted for any treason 
except on the testimony of two lawful wit¬ 
nesses who should be brought face to face 


IIO 


DEVELOPMENT OF THESE RIGHTS 


with him at his trial. This safeguard, al¬ 
though shamelessly evaded or disregarded 
under Elizabeth and James I, never dis¬ 
appeared from the English Constitution 
and became part of ours. Aaron Burr was 
saved by it. In the short reign of Edward 
VI also appears the first clearly authenti¬ 
cated instance of torture . Now, the English 
law does not admit of torture. But the 
final note of the Tudor attempt to overthrow 
popular liberty is best expressed by a 
German—Gneist. It existed in an attempt 
to govern by the King in Council rather than 
by Parliament and courts; and so to manipu¬ 
late both the courts and the legislature as 
to make them subservient to the despotic 
power of the Council, in which the royal will 
was omnipotent. Much as if to-day both 
Houses of Congress and the courts were to 
become subservient either to the President 
or to his Cabinet, which he controlled. 
Moreover, this Council—like our Interstate 
Commerce Commission—was both legis¬ 
lative, administrative and judicial. And 
among other things it governed—for 150 
years—the American colonies. Its power 
rested on an idea of “an extraordinary 


hi 


THE AMERICAN CONSTITUTION 


dictatorial power residing in the King which 
in any state crisis could thrust aside self- 
imposed barriers, laws and judicial consti¬ 
tution and find a remedy by extraordinary 
measures, jurisdiction and ordinances.” 

Still, however, the Tudor tyranny was 
powerless in the presence of an armed peo¬ 
ple. Its weakness lay in the absence of a 
standing military force. But in 1549, as 
a consequence of the Peasants’ revolt— 
who revolted because of the enclosure of 
common land—Somerset, the protector, met 
Jack Cade at the head of a hundred thou¬ 
sand agricultural laborers in Kent with the 
aid of German and Italian mercenaries, 
regular soldiers, now for the first time em¬ 
ployed by English rulers in the coercion 
of English subjects. 

We have now (1550) a standing army. 
The natural consequences follow; in courts- 
martial, military law; billeting of soldiers, 
overawing the courts; and these are the prin¬ 
cipal things complained of against Charles 
I in the Petition of Right. But there were 
other rights that began to be interfered with 
at this time. The press, for instance, was 
placed under a strict censorship. Govern- 


112 


DEVELOPMENT OF THESE RIGHTS 


ment interference with elections became a 
common practice. Freedom of speech was 
attacked in the House of Commons by Eliza¬ 
beth herself—causing one Peter Wentworth, 
a Cornishman, to say “ Sweet is the name of 
liberty; but let us take care lest, contenting 
ourselves with the sweetness of the name, 
we lose and forego the thing. Two things 
do great hurt here, one a rumor which run¬ 
neth about the House: ‘Take heed what you 
do. The Queen’s Majesty liketh not such 
a matter. Whosoever preferreth it she will 
be offended with him.’ The other is a 
message sometimes brought into the House, 
either of commanding or inhibiting.—I 
would to God, Mr. Speaker, that these two 
were buried in Hell. The King hath no 
peer in the kingdom; but he ought to be 
under the law because the law maketh him 
a king.” To this Queen Elizabeth replied: 
“Privilege of speech is granted; but you 
must know what privilege ye have; not to 
speak every word what he listeth, or what 
cometh into his brain to utter; your privilege 
is Ay or No”—and Mr. Peter Wentworth 
was committed to the Tower. 

The next attack was on the liberty of 
“3 


THE AMERICAN CONSTITUTION 


trade. Elizabeth, unwilling to incur the 
unpopularity of a direct tax, sought to raise 
money by the granting of monopolies, lavish 
grants to her courtiers of patents to deal 
exclusively in coal, leather, salt, oil, vinegar, 
starch, iron, lead, yarn, glass, and other 
common necessaries of life. This grievance 
was attacked in Parliament by a Mr. Bell 
who was at once summoned before the 
Queen’s Council and returned to the House 
“with such an amazed countenance that it 
daunted all the rest.” The abuse rose to a 
greater height. So numerous were the arti¬ 
cles subject to monopoly that when a list of 
them was read over in 1601, an indignant 
member exclaimed “Is not bread amongst 
them ? Nay, if no remedy is found for this, 
bread will be there before the next Parlia¬ 
ment.” 

The populace openly cursed the monop¬ 
olies, and seeing that resistance was no 
longer politic or even possible, Elizabeth, 
with a tact quite modern, sent a message 
to the Commons promising that some should 
be presently repealed, some superseded and 
none put in execution but such as should 
first have a trial according to the law, for 


DEVELOPMENT OF THESE RIGHTS 


the good of the people—“good trusts and 
bad trusts.” This, however, was not suf¬ 
ficient; and the great anti-monopoly statute 
was passed two years later. This act has 
passed into the British Constitution, and 
although the word “monopoly” does not 
appear in the Federal Constitution they are 
forbidden by the Constitutions of several of 
the States, and even this is hardly necessary, 
for they are contrary to the common law. 

We come now to the House of Stuart. 
Their attack on English liberties may be 
summed up in two phrases. “Abnormal 
centralization,” says our great historian, 
Hannis Taylor, “abnormal centralization 
was the fault of the House of Stuart.” And 
the English Taswell-Langmead adds, “per¬ 
sonal government, ‘thorough/” It began 
with the device of interfering with the elec¬ 
tions. Neglecting the old principle that 
they should be free, James I took upon him¬ 
self to specify the kind of men who were to 
be elected to the House of Commons, and 
directed that all returns should be sent to 
his Court of Chancery, which should reject 
such men as did not come up to his standard. 
So here the House had another fight, for 

115 


THE AMERICAN CONSTITUTION 


their own right to determine contested elec¬ 
tions; and it came to a head in a document 
they drew up and presented to the King, 
modestly entitled “A form of Apology and 
Satisfaction to be delivered to his Majesty.” 
This “form of apology” consisted in calling 
attention to the maintenance by the King of 
private law suits, to the monopolies of trade 
companies still existing, to the assertion that 
the Commons held their privileges of right 
and not of the King’s grace; that they were 
the highest court in the realm; that the King 
had no business to meddle with the returns 
of their elections and other not too apolo¬ 
getic matters. This complaint the King met 
by allowing years to elapse without call¬ 
ing his Parliament together; and this fa¬ 
miliar abuse of the Stuart kings led to our 
constitutional provision that Congress shall 
meet at least once every year. James re¬ 
peated the offence of trying to make laws 
himself, and proclaiming certain acts to be 
crimes; and endeavored in vain to get a 
judgment from the great Coke that this was 
lawful. Coke said, “The king may make 
a proclamation of the law already existing, 
but of no new law; to put people in fear of 


DEVELOPMENT OF THESE RIGHTS 

his displeasure, but not to inflict any fine 
or punishment.” He attacked his enemies 
freely for political libel and in one case the 
royal officers searched a clergyman’s house 
and found a manuscript sermon which had 
never been preached. It was forwarded to 
the King’s Council, and the sentiments ex¬ 
pressed not pleasing them, the clergyman 
was put to the rack and tortured and then 
indicted for treason on the ground that the 
manuscript contained matters which would 
be seditious if published. And here comes 
a noteworthy event. James directed his at¬ 
torney-general, Bacon, to confer with the 
judges of the King’s Bench separately and 
find out whether they would consider such 
a thing treason; in short he tried to ascertain 
and probably to influence, their opinions. 
Chief Justice Coke objected (so Bacon re¬ 
ported to the King), that “such private, 
auricular, taking of opinions was not ac¬ 
cording to the custom of the realm.” The 
other judges weakened; but Coke persist¬ 
ently maintained that a mere declaration of 
the King’s unworthiness to govern, in a 
written sermon which had never been 
preached, could not amount to treason. 

117 


THE AMERICAN CONSTITUTION 


Nevertheless the unfortunate minister was 
sentenced to death, but died in jail before 
he could be executed. 

Now here begins a most pertinacious and 
continued attempt made by both James and 
Charles I to undermine the right of the sub¬ 
ject to law, by intimidating or controlling the 
courts. It lasted over fifty years; and ended 
with the attempt to bulldoze the great 
Chief Justice Coke. The King asserted his 
right to interfere with the opinions of the 
judges in every case in which the rights of 
the Crown were in the slightest degree in¬ 
volved. This claim was met by pertina¬ 
cious denial. Finally, the King ordered the 
twelve judges of the court not to proceed 
further in a certain cause until they should 
hear his pleasure. He complained that of 
late the courts of common law had grown 
so vast and transcendent as to meddle with 
the King’s prerogative. Most of the judges 
fell upon their knees and asked his pardon, 
but Coke reiterated his opinion that the 
court should neither postpone or try a case 
upon the order of a king. King James then 
asked a formal legal opinion of the court 
whether, if his Majesty conceived a case to 
118 



DEVELOPMENT OF THESE RIGHTS 


concern him either in power or profit and 
thereupon required to consult with them 
and that they should stay proceedings in the 
meantime, they ought not to stay, accord¬ 
ingly. From Coke no other answer could 
be extracted than, that “ whenever such a 
case should come before him he would do 
what was fitting for a judge to do.” Then, 
a few weeks later he was censured by the 
King’s Council and suspended from his 
office, and not long afterwards received 
notice that he had ceased to be Chief 
Justice. This was in 1616. In 1642 the 
Civil War began. 

“The disgrace of Coke,” says Gardiner, 
the historian, “is a great historical land¬ 
mark.” The common-law judges now held 
their offices at the “good pleasure of the 
sovereign.” All this happened in 1616. It 
was not until after the English Revolution 
that the Act of Settlement declared that all 
judges should hold their office during good 
behavior and have neither their salaries nor 
their places dependent on the Executive. 
This ends the period of transition. The 
King, having acquired the legislative power, 
both by packing his Parliament and by cre- 
119 


THE AMERICAN CONSTITUTION 


ating a legislative body outside of Parlia¬ 
ment, had now grabbed the judicial power 
also, by causing the judges to feel that they 
held their office only during his good pleas¬ 
ure and disgracing those who stood against 
it. We are now fairly embarked on the 
career of personal government which be¬ 
came the rallying cry of Charles I—he called 
it “Prerogative.” Both James and Charles, 
and much more indeed after them George 
III, endeavored to carry out personal gov¬ 
ernment by doing without the Cabinet and 
having a private cabinet of court favorites. 
Hannis Taylor tells us that in order to make 
the system of governing without a Parlia¬ 
ment more responsive than ever to the King’s 
personal will, James revived the detested 
influence represented by court favorites; and 
you will doubtless remember that this was 
so notable under George III that our re¬ 
bellion was practically brought on by the 
government of the Earl of Bute, a Scotch 
favorite of King George, who was not only 
not in the Cabinet but had been turned out of 
the same; yet his influence prevailed against 
the legitimate cabinet of Lord North, who 
at one time might have placated the angry 


120 


DEVELOPMENT OF THESE RIGHTS 


colonies. “England/’ says Burke, “was 
governed by an interior cabinet—a secret 
coterie of the King’s friends.” 

Finally, in 1624, James endeavored to get 
on without a Parliament entirely. Charles I, 
succeeding, after one or two abortive trials of 
Parliament, did the same thing. His first 
Parliament, by the great John Eliot, at¬ 
tacked the administration of a private 
favorite, the Duke of Buckingham. Where¬ 
upon Charles said to the House, “I must let 
you know that I will not allow any of my 
servants to be questioned among you, much 
less such as are of eminent place and near 
to me”; and a few days later the King sum¬ 
moned the Commons to his presence and 
told them to “remember that parliaments 
are altogether in my power for their calling, 
sitting, and dissolution; therefore, as I find 
the fruits of them good or evil, they are to be 
continued or not to be.” His last Parlia¬ 
ment signalized its existence by the ominous 
great Petition of Right. The Lords vainly 
proposed an amendment saving the sover¬ 
eign power to his Majesty, but when the 
petition came back, Sir Edward Coke,— 
who had bobbed up serenely in the House of 
121 


THE AMERICAN CONSTITUTION 


Commons—refused. “I know how to add 
‘sovereign’ to the King’s person, but not to 
his power,” said he, “and we cannot ‘leave’ 
to him a ‘ sovereign ’ power for we were never 
possessed of it. In my opinion it weakens 
Magna Charta and all the statutes, for they 
are absolute without any saving of sovereign 
power. Take we heed what we yield unto. 
Magna Charta is such a fellow that he will 
have no ‘sovereign.’” Charles I refused to 
sign the Petition of Right at first, returning 
a long and equivocal answer. Whereupon 
the Commons proceeded to impeach his 
favorite, Buckingham, and then he hastily 
signed the bill as requested. 

The principal new liberty prayed for in 
the Petition of Right was to be relieved from 
martial law and from the tyranny of com¬ 
missions appointed by the King. But no 
Parliament was called again until the Long 
Parliament in 1640. Thus, England did 
without a free government for eleven years. 
France did without a States-General for 
one hundred and seventy-four years; but in 
both countries when the people’s representa¬ 
tives were re-assembled their first act was 
to overthrow royalty and execute their king. 


122 


DEVELOPMENT OF THESE RIGHTS 


During these eleven years monopolies 
were re-established and applied to every 
article of ordinary consumption. Royal 
proclamations made the law; and the courts 
of Star Chamber and High Commission, 
outside the common law, by cruel and bar¬ 
barous punishment, without a jury trial, 
maintained a reign of terror. The Bishop 
of Lincoln was fined. A poor clergyman 
who had written him a letter had his ears 
nailed to the door in front of his school. The 
father of the Archbishop of Glasgow had 
one ear cut off and his cheek branded. There 
were no juries in England and no common 
law. Everything was done by royal boards 
and high commissions—but finally arbitrary 
government split upon the old rock. The 
King endeavored to impose customs duties 
without an Act of Parliament upon the 
merchants of England; they resisted; and 
when they were brought before the King’s 
Council, one of them—Richard Chambers— 
ventured to declare that “ merchants are in 
no part of the world so screwed as in Eng¬ 
land. In Turkey they have more encour¬ 
agement”; whereupon he was committed to 
the Marshalsea for contempt. 

123 


THE AMERICAN CONSTITUTION 


Next, the King turned his attention to the 
land owners. He imposed a huge tax to 
build a supposed navy, which never existed 
but on paper. But in the effort to collect 
this tax, he ran up against a modest country 
gentleman, one John Hampden of Bucking¬ 
hamshire, who refused to pay twenty shil¬ 
lings, being the sum assessed upon his estate. 
The result you know. Charles committed 
Eliot and eight of his associate members to 
the Tower, and on the day set for its reas¬ 
sembling, dissolved the Parliament in which 
John Eliot had made his last and Oliver 
Cromwell his first speech. John Eliot died 
in gaol; and when his son asked permission 
to take his father’s remains for burial to the 
country home in Devon where he was loved 
and honored by all, the King wrote:—“Let 
Sir John Eliot be buried in the church of 
that parish where he died.” Then followed 
eleven years of personal rule, thorough and 
strenuous. The king’s leader was Straf¬ 
ford—of whom Green, the historian, said, 
“Strafford is the one English statesman of 
all time who may be said to have had no 
sense of law.” And Strafford was finally 
indicted for this, that is to say, for conspiring 


DEVELOPMENT OF THESE RIGHTS 


to subvert the law of England; Charles could 
not save him and he perished on the scaffold. 
Charles himself was beheaded in 1649. 

We have no time to dwell upon the Com¬ 
monwealth except to say that its later history 
shows as well the danger of unconstitutional 
government by a legislature as by a king. 
Charles did little worse than the Rump 
Parliament, while the Protector showed a 
disregard of the right to law quite as cynical 
as that of a Stuart and much more frank. 
Disgusted with his Parliament he marched 
in with a file of soldiers, cleared the mace 
from the table and closed and locked the 
doors. Bradshaw, president of the Council, 
said to Cromwell, “Sir, you are mistaken 
to think that the Parliament is dissolved. 
No power under heaven can dissolve them 
but themselves. Therefore, take you notice 
of that.” And after eight years of govern¬ 
ment by the Army, the survivors of this same 
House of Commons, without a new election, 
reassembled to welcome Charles II. 

It is a curious fact that it was the con¬ 
servative element in the House who en¬ 
deavored to persuade Cromwell to take the 
title of king. Our American historian tells 
125 


THE AMERICAN CONSTITUTION 


us that the reason of this was that they 
believed that the prerogative as limited and 
defined by law, the limited powers of a king, 
were less dangerous to public liberty than 
the novel powers of a protector unrestrained 
by any constitution . Cromwell was deterred 
from accepting it by the angry protest 
of the army; but he succeeded in getting 
through the second new constitution in two 
years—the “Act of Government,” under 
which the supreme power was still to re¬ 
main with Cromwell; and—what he par¬ 
ticularly wanted—he was authorized to 
name his own successor (Taylor, II, 352.) 
Mr. Roosevelt omits to note this in his “ Life 
of Cromwell.” 

Both Charles II and James II interfered 
with the people’s liberties mainly in their 
religious rights, and that need not detain 
us, but James increased the standing army 
to 30,000. James II, however, played the 
old trick of consulting the judges privately 
as to what their opinion would be on a pro¬ 
posed course of policy, and when it ap¬ 
peared that the chief justice, the chief baron 
of the exchequer and two other judges were 
of opinion that the King could not suspend 
126 


DEVELOPMENT OF THESE RIGHTS 


:he law of England in the interest of the 
Catholics, these four judges were dismissed 
and their places supplied by others who were 
known to be subservient to the royal will. 
“I am determined/’ said the king, “to have 
twelve judges who will be all of my mind as 
to this matter.” “Your Majesty,” answered 
the chief justice, Jones, “Your Majesty 
may find twelve judges of your mind, but 
hardly twelve lawyers.” 

The people, however, did win from 
Charles II the great Habeas Corpus Act 
which is the final perfection of that machin¬ 
ery for the personal liberty of the English¬ 
man that I spoke of in my second lecture. 
But James kept on interfering, and again 
the people rose, expelled their king, and 
the rising wave of the Revolution left in 
its flood the highest constitutional docu¬ 
ment since Magna Charta—the great Bill of 
Rights I have so often referred to. It re¬ 
peats all the old liberty rights we have been 
discussing in these four lectures and adds 
to them a prohibition of standing armies 
without the consent of the people, asserts 
the right of people to bear arms, protects 
them from excessive bail or excessive fines 
127 


THE AMERICAN CONSTITUTION 


or cruel punishments, and guarantees every 
man the right to assemble for political pur¬ 
poses and to petition the government. And, 
most of all, it adds the great principle “That 
the pretended power of suspending laws, 
or the execution of laws, by regal authority, 
as it hath been assumed and exercised of 
late, is illegal.” Finally, twelve years later, 
came the Act of Settlement—interesting 
to Englishmen because it provides for the 
descent of the Crown to Protestants only, 
but mainly notable to us because it puts back 
the provision omitted in the Bill of Rights 
that all judges should hold their office for 
life or during good behavior, for a fixed 
salary, and could only be removed by Parlia¬ 
ment and never by the king; and adds an¬ 
other significant principle that the king may 
not pardon a man whom the Commons wish 
to impeach. And this, the last of the Eng¬ 
lish constitutional documents, closes with 
the sentiment with which our first lecture 
began—the laws of England, for securing 
the rights and liberties of the people, are 
the birthright of the people; and all queens 
and kings ought to administer the govern¬ 
ment according to said laws. And they 
128 


DEVELOPMENT OF THESE RIGHTS 


mean here by the “laws” what we now call 
the English Constitution. 

Nearly a quiet century of government by 
Parliament went by, and at last we come 
to George III. And he lost America by 
failing to understand two of the earliest 
and cardinal principles of the English Con¬ 
stitution. “‘George, be King/ was the les¬ 
son his mother repeated to him as a child,” 
says Horace Walpole. He was the most 
popular sovereign England had had in two 
hundred years, and he determined at the 
outset to reassert the personal power of the 
Crown. Taswell-Langmead tells us that 
the very characteristics which in a private 
station would have been accounted merits, 
rendered him unfit to be a constitutional 
king. “By his meddlesome energy and 
restless activity in regulating every affair of 
state from the greatest to the least, combined 
with a resolute obstinacy in enforcing his 
own views against the opinion of his consti¬ 
tutional advisers, he succeeded in reducing 
the nation from prosperity to the depths of 
adversity and in depriving the country for¬ 
ever of its American colonies.” In 1780 
even the House of Commons carried the 


129 


THE AMERICAN CONSTITUTION 


celebrated resolution introduced by Mr. 
Dunning “That the influence of the Crown 
has increased, is increasing and ought to be 
diminished,” but it was not until America 
was lost that George III came back to con¬ 
stitutional government. In a sense, there¬ 
fore, we Americans—and so every constitu¬ 
tional historian is agreed—we Americans 
saved for the last time the liberties of the 
English people. In asserting our own, they 
resisted us and we were lost to them; but 
in the process we gained them theirs. To 
attempt to govern any English people with¬ 
out a legislature by the King in Council, 
by the Executive alone; to attempt to tax 
even loyal Canada by Act of Parliament at 
Westminister and not of Parliament at 
Ottawa; to subject Australia or New Zea¬ 
land to the government even of an imperial 
House of Commons in which they were 
not represented;—would now call forth the 
jeers even of a Tory majority. This is the 
last of the constitutional principles we have 
given back to England. We left the British 
Empire because there was too much personal 
government. England learned the lesson well 
and no king will repeat the mistake again. 

130 


V 


THE EXPRESSION OF THESE LIBERTIES 
IN OUR FEDERAL CONSTITUTION 

of these liberties we have been dis- 



1 X. cussing, the liberties of the people, were 
re-established in our Federal Constitution 
in their early and most vigorous form, or in 
such improved form as the experience of our 
English ancestors under the Stuarts and 
Tudors, and the experience of our own 
ancestors under George III, suggested. 
Except the two or three cardinal constitu¬ 
tional inventions that we made, it may be 
doubted whether there is anything in our 
Constitution that is more than an expression 
or an amplification of an English Constitu¬ 
tional principle. But it will be extremely 
interesting to consider both the form of 
words that we chose and the number of 
principles we decided to express constitu¬ 
tionally; and more interesting still to note 
their division among the Executive, the 


THE AMERICAN CONSTITUTION 


Legislative and the Judicial powers; and 
the other great three-fold division between 
the powers of the Federal Government, the 
powers or rights of the States, and the rights 
reserved or retained by the people,—which 
forms indeed the special subject of this 
course of lectures. We shall also have 
occasion to speak particularly of such rights 
or powers as seem to be of overweening 
importance in the future. Indeed, for the 
rest we shall look to the future rather than 
to the past. 

It is most interesting to make a careful 
analysis of our Constitution, and note what 
importance it apparently assigns to these 
several divisions of power. We will con¬ 
tinue our custom of taking up the rights of 
the people first, that domain of sovereign 
power which President Roosevelt seems 
to think was all surrendered by the people 
to the Federal Government when they 
formed the Union. The Constitution of 
the United States in its body and in the 
Amendments expresses or recognizes, in 
thirty-nine clauses, no less than sixty-six 
of these rights reserved to the people, which 
the Federal Government cannot take away. 

132 


EXPRESSION IN THE CONSTITUTION 


On the other hand, when we come to the 
powers that are surrendered, given up by 
the people or by the States, to the Central 
Government, we can count, on a careful 
analysis, in fifty-seven clauses but sixty- 
four. Then we can count eleven more 
things which, being forbidden in the Con¬ 
stitution to both the Federal Government 
and the State Governments, are inferentially 
left with the people,—making seventy-seven 
rights or powers in all expressly mentioned 
or necessarily implied by this short docu¬ 
ment, which are forever to be left in the 
people’s hands. 

Now, as to the division of these sixty-four 
Federal rights or powers between the three 
branches of Government, Legislative, Ex¬ 
ecutive, and Judicial; and I put these in 
the order, as the Constitution does, of their 
relative importance and dignity. I shall 
have failed indeed, if I have not persuaded 
you that the Anglo-Saxon theory always was 
that the people through their representatives, 
that is, the Legislature, were the sovereign 
power, the sovereign law-making body, and 
as such, superior to the Executive, the 
King. Our Constitution recognizes that 
i33 


THE AMERICAN CONSTITUTION 


by adopting this order, mentioning the 
departments as so arranged. Taking, there¬ 
fore, the legislative power first, we can 
count nineteen powers expressly given to 
Congress and we can count about seventy 
expressly denied. 

Our Executive, as you know, corresponds 
to the English King, though elected but for 
a term of four years, and, as our Supreme 
Court has said, “With the loss of many a 
flower of the English King’s prerogative.” 
On the other hand, he has, in many respects, 
more powers than an English King under 
the Constitution, as we shall find when we 
consider them in detail. Great as they 
are, however, I can only find seven powers 
actually given to the President by the Con¬ 
stitution of the United States. All others 
are therefore denied. And in this connec¬ 
tion it is a most striking thing to note that 
for the President the Constitution expressly 
provides a duty and an oath. The duty is 
to execute the laws; (Art. 3, Section 3) “He 
shall take care that the laws be faithfully 
executed.” The oath is (Art. 3, Section 1, 
clause 7) “To preserve, protect, and defend 
the Constitution of the United States.” 


*34 


EXPRESSION IN THE CONSTITUTION 


The judicial powers are almost negligible, 
for, in a sense, the courts have none. The 
Constitution only recognizes the Supreme 
Court. It gives to Congress the power to 
make other courts. Their duty, in a gen¬ 
eral way, is to try all suits between two 
States, or where the United States itself is 
a party; to try generally all cases arising 
on the sea or from the navigation of ships, 
—what we call Admiralty—and finally, what 
has grown most important of all, to try any 
suit that may happen to be between citizens 
of different States or between a corporation 
of one State and a citizen of another. They 
are given no other powers, and their main 
constitutional restriction is that they shall 
try no case coming up from a State court 
except according to the common law. 

When we come to our other division, our 
second American invention which makes it 
possible for a strong national government to 
coexist with the local self-government of a 
free people, the division between the National 
powers and “States’ Rights”—the rights 
never given by the people to the Federal 
Government—we shall find again that it is 
the people that are primarily thought of in 
i35 


THE AMERICAN CONSTITUTION 


the Constitution. The number of rights 
reserved to them from the Federal Gov¬ 
ernment is, as we have said, sixty-six, to 
which we must add the rights which 
result from things that are prohibited 
both to the Federal Government and to the 
States, making seventy-seven in all. The 
rights given to the States by the Federal 
Constitution, that is, the rights therein 
mentioned as expressly reserved to them, 
are only nineteen. Of these, twelve are 
forbidden to the Federal Government, four 
are shared or may be exercised by both, 
and three are left indefinite; but this small 
number, nineteen, of course, does not rep¬ 
resent all the rights reserved to the States. 
Under the Tenth Amendment, all rights not 
expressly given to the Federal Government 
are reserved to the States or to the people. 
These nineteen clauses merely represent 
those rights which, for some reason, were 
thought sufficiently important to mention 
expressly in the Constitution. 

Finally, the number of rights expressly 
given to the Federal Government amounts, 
as I said, to sixty-four. Of these, forty-three 
are forbidden to the States and seventeen 
136 


EXPRESSION IN THE CONSTITUTION 

may apparently be shared or exercised by 
the States. At least, there is nothing in the 
Constitution to forbid it. Only four rights 
are expressly shared, divided, between the 
Federal Government and a State: the right 
of making a new State out of two States 
previously existing, or dividing an old State 
into two or more new States; this can only 
be done by the joint action of the National 
Congress and the legislatures of the States 
concerned; the right of levying imposts 
or duties with the consent of Congress; the 
duty of maintaining a republican form 
of Government; and the power of amend¬ 
ing the Constitution. In only one case can 
the Federal Government coerce a State; 
that is, when it ceases to maintain a republi¬ 
can form of Government; though the Four¬ 
teenth Amendment added another case by 
implication, (apparently we were too proud 
to put it in words,) that is, that the United 
States may coerce a State if it secedes. The 
war settled that. On the other hand Article 
5 of the original Constitution seems express¬ 
ly to provide that a State may secede if it 
be ‘deprived of its equal suffrage in the 
Senate. It is under this clause that we are 
i37 


THE AMERICAN CONSTITUTION 


helpless to alter a state of things where 
Nevada, having about the population of 
the town of Brookline, sends two senators 
to the United States Senate. 

Recapitulating, though I suppose this will 
be interesting only to persons who delight 
in figures, there are thirty-nine clauses ex¬ 
pressing powers left with the people in the 
Constitution of the United States, though 
at least fifty or sixty more are so left by 
necessary implication. Sixty-six clauses 
contain things forbidden to the States, and 
eighteen contain things expressly allowed 
them. Sixty-one clauses state things for¬ 
bidden the Federal Government, and sixty 
the things expressly allowed it. Three 
things are expressly given to both the 
Federal Government and the States, and 
twelve clauses contain things expressly 
forbidden to both, while thirty-nine clauses 
express powers withheld by the States or 
the people. As a grand result, our Federal 
Constitution contains one hundred and fif¬ 
teen denials and only seventy-nine affirma¬ 
tions of power; while there are thirty-nine 
express reservations of sovereign domain 
left to the people. The excess of negations 
i3 8 


EXPRESSION IN THE CONSTITUTION 


over affirmations must not surprise us, for 
all constitutions consist mainly in imposing 
negatives. You will remember that the 
British Constitution, which we have already 
studied, consists mainly in showing what the 
King or his officers may not do; and the 
American Constitution is more complex, 
because it imposes negations on the Congress 
and the States as well as on the President. 

Taking the people’s rights first, the car¬ 
dinal principle of all—that the people are 
sovereign and that they have only clothed 
the National Government with part of their 
powers—is expressed in two places. The first 
words of the Preamble are “We, the people 
of the United States, do establish this Con¬ 
stitution.” It is not done by the States, as 
the Secession States’-rights people used to 
claim, it is done by the people as a whole. 
State lines for a moment disappear and are 
merged in the mightier fabric created by 
the people of the Nation. 

On the other hand, turn to the Ninth and 
Tenth Amendments. “The enumeration in 
the Constitution, of certain rights, shall not 
be construed to deny or disparage others 
retained by the people.” “The powers 
i39 


THE AMERICAN CONSTITUTION 


not delegated to the United States by the 
Constitution, nor prohibited by it to the 
States, are reserved to the States respec¬ 
tively or to the people.” This is the great 
assertion that seems to give the present 
administration so much trouble,—the ex¬ 
press statement that until the people choose 
to amend the Constitution, they do not wish 
the United States to exercise any powers 
they have not expressly delegated to it. 
Remember, most of the States refused to 
come into the Union until they got the prom¬ 
ise that this Tenth Amendment should be 
adopted, which was done November 3, 1791, 
only two years after the original Constitu¬ 
tion went into force. There would have 
been no Union but for this Amendment. 
There would have been no Nation but for 
the sacred promise to the people and the 
States that these powers should be reserved. 
Notice the words, “The powers not del¬ 
egated to the United States by the Constitu¬ 
tion.” No powers are or can be delegated 
by the United States to the States, or still 
more, to the people. It is the other way 
about. It is the people or the States who 
delegate powers to the United States. Now, 


EXPRESSION IN THE CONSTITUTION 


President Roosevelt in his great speech at 
Harrisburg, October 3, 1906, used these 
words when speaking of his desire to regulate 
and control large fortunes: “Only the Nation 
can do this work. To relegate it to the 
States is a farce and is simply another way 
of saying that it shall not be done at all.” 
Now I have nothing to do at present with 
the argument that there should be a pro¬ 
hibitive tax on the acquiring of large fort¬ 
unes, nor even with the question whether 
that is a function that under our system 
should belong to the States or to the Nation 
to regulate, but I would call your attention 
particularly to the President’s words. He 
said it would be useless to relegate this 
power to the States. I watched very care¬ 
fully to see whether, in the repetitions of this 
speech, that word “relegate” would be 
changed, but it was not withdrawn. On the 
contrary it was used, if I mistake not, once 
or twice again. But to use that one phrase, 
to “relegate” a political power to the States, 
misstates the principle of the American 
Constitution. Under the Constitution, the 
Nation can relegate nothing to the States. 
It is the States or the people that delegate 


THE AMERICAN CONSTITUTION 


powers to the Nation. Congress and the 
President have no power to delegate or 
relegate anything to the States. They could 
not if they tried. If a power is not granted 
to the Federal Government, it has nothing 
to do with it. If the power is granted, it is 
unconstitutional for it to break faith with 
the Nation’s compact with the people and 
hand it back to the States again. That 
last matter was carefully considered in the 
Industrial Commission when one of the 
plans advanced for the regulation of Trusts 
was to relegate to the States the power over 
interstate commerce which the people had 
delegated to the Nation. It was felt that 
there might be a grave constitutional objec¬ 
tion. A trust which is given to you may 
not by you be handed over to another. But 
whether that be so or not, of a power actu¬ 
ally given to the United States, there is no 
question, it is axiomatic, that a power never 
given to the United States, never parted with 
by the people, cannot be either relegated or 
delegated back from the Nation to the 
States. It is the States, the people, that 
make the Nation—not the Nation the States. 
It is elementary that the Federal Govern- 


EXPRESSION IN THE CONSTITUTION 


ment has no power to delegate anything. 
It would be the creature endowing the 
creator. It is the States—the people— 
that have created the Federal Government, 
and the Federal Government is there only 
to obey their behest. A sovereign may 
make a grant to his people, but a gov¬ 
ernment of limited powers may not endow, 
with any rights, the people of whom it is 
but the servant. 

This is the great law of the Constitution. 
The Constitution is the tablet where the 
people have written their will and they have 
written their will that it shall never be 
changed save in the manner they have 
appointed. That is, by an amendment 
ratified by the people’s representatives in 
three-fourths of the States. In another 
speech written after the President’s atten¬ 
tion had been called to this amendment, he 
says that he is for the people and for the 
Constitution when it reserves the people’s 
rights, but not when it perpetuates the peo¬ 
ple’s wrongs. Of that who is to be the 
judge,—one man, for the time being, the 
President of the United States, or the people 
of the United States ? 


i43 


THE AMERICAN CONSTITUTION 


The fundamental error lying in these 
conceptions of our government is to sup¬ 
pose that all powers exercised in other 
countries, kingdoms, or empires,—sovereign 
States, as they are called,—have been 
necessarily under our Constitution, reposed 
in some branch of the Government, State 
or Federal. In this same speech, the Pres¬ 
ident points out that there may be gaps of 
power, gaps of prerogative, left between the 
Nation and the State, areas of domain, which, 
under our system, are exercised by nobody. 
If that be true, it is because the people 
willed it so. We have not clothed our 
fabric of government, as I said at the begin¬ 
ning, with all the sovereign powers of 
European empires. As our Supreme Court 
has said of the President, and it might 
equally well say it of Congress, “He is not 
a king, even for four years.” The Federal 
Government has indeed succeeded to many 
of the rights of the British Crown and Par¬ 
liament, but, as the great John Marshall 
said: “With many a flower of their pre¬ 
rogative stripped away.” But these gaps 
of which President Roosevelt complains, 
are usually left by the non-action of the 
144 


EXPRESSION IN THE CONSTITUTION 


State, that is, of the people of a State. Does 
that give the Federal Government a right 
to interfere ? Does it not rather prove that 
the people of that State desire no action on 
that point ? This is their undoubted pre¬ 
rogative, the undoubted prerogative of the 
State. Conditions vary, views change, aims 
differ. Because a State does not pass all 
the laws that it might pass, or all the laws 
that the President of the United States 
thinks it should, does that fact alone give 
the Federal Government a right to inter¬ 
vene ? We have never passed any laws 
against trusts in Massachusetts. Does that 
fact, under the Constitution, authorize Con¬ 
gress to legislate upon the subject for us ? 
Labor laws,—the hours of labor,—marriage 
laws,—the age of marriage,—differ under 
the statutes of all our States. The dif¬ 
ference of climate alone is reason enough 
for this, to say nothing of social conditions. 
The President seems to think, however, 
that if he, or Congress, makes up his mind 
that a nine-hour law in factories is right, 
that very fact should authorize the Federal 
Government to impose it on all the States. 
One of the greatest safeties of our system of 
I 45 


THE AMERICAN CONSTITUTION 


Government is that every State has the right 
to try an experiment, to work out its salva¬ 
tion in its own way, and the other States 
profit by its example. English people have, 
for a thousand years, dearly kept their 
liberty, their persons, their property, their 
domestic affairs, aye, and their political 
affairs, at home in their own hands, each 
community making its own rules, its own 
customs; and they forced the Norman Kings 
to respect them all. I do not believe we 
shall part with this dearly-won heritage on 
any momentary impulse to extirpate a 
present wrong. 

The second great right of the people 
expressly reserved in the Federal Constitu¬ 
tion I should put as the one I mentioned 
in my first lecture. That wonderful prin¬ 
ciple of the separation of the powers and 
allowing no man or set of men to exercise 
two of them, to both make the laws and 
execute them or judge those who break 
them. This I hold to be the second great 
bulwark of freedom for the American peo¬ 
ple, and I will venture to state that no one 
ever questioned this until very recently, if 
at all. We shall reserve more consideration 
146 


EXPRESSION IN THE CONSTITUTION 

of this subject for a future lecture. To¬ 
night, merely by way of example, I would 
call your attention to the fact that the Inter¬ 
state Commerce Commission, to a certain 
extent, and the Federal Bureau of Corpora¬ 
tions (as the President would have it amend¬ 
ed) both make laws and judge offenders. 
This, you know, was made an objection to 
the constitutionality of the Railway Rate 
Regulation Bill, and it has not yet been de¬ 
cided by the Supreme Court. Government 
by boards, by commissions, rather than by 
Congress and the other officers provided 
for that purpose in the Constitution, is get¬ 
ting to be a danger that is not only in the 
Nation but in the States. I would remind 
you of the abuses we found in the last lect¬ 
ure which attended the system in England, 
especially under Charles and George III. 
Let us not forget it. A board or commission 
is not a common-law creation. It stands 
between the people and the common law. 
It is apt to be an obstacle to the assertion 
of their rights, a hindrance rather than a 
help, and in the long run every board, yes, 
even the railroad commissions, the gas 
commissions of the several States, every 
H7 


THE AMERICAN CONSTITUTION 


board, tends to become the creature of the 
thing that it was created to control. This 
separation of powers of which I speak is, 
of course, contained at the beginning of 
each of the three articles in the Federal 
Constitution. Art. I, Sec. i, where it says 
“All legislative powers herein granted shall 
be vested in a Congress.” Art. II, Sec. i, 
/‘The Executive power shall be vested in a 
President.” Art. Ill, Sec. i, where it says, 
■' “The judicial power shall be vested in one 
Supreme Court.” This is as compendious, 
though not perhaps so striking, a way of 
putting this great principle, as we find in 
the Constitution of Massachusetts, though 
it does not contain those splendid words of 
explanation, “To the end that it be a Gov¬ 
ernment of laws and not of men.” 

The third great right of the people reserved 
in the people, never delegated by them to 
anybody to interfere with, is that of liberty; 
and we have fully discussed the history and 
the meaning of this great word to English 
ears. It is found again in the Preamble, 
4th line, where it says: “We, the people, 
establish this Constitution in order to secure 
the blessings of liberty.” It is found again 
148 


EXPRESSION IN THE CONSTITUTION 


in the Fifth Amendment, where it says “No 
person shall be deprived of liberty with¬ 
out due process of law/’ It is found again 
in the Fourteenth Amendment, Section i, 
where all States are forbidden from making 
or enforcing any law to abridge the priv¬ 
ileges or immunities of citizens of the United 
States, “nor shall any State deprive any 
person of life, liberty or property without 
due process of law.” Of this right, I really 
feel that I need now say no more. But the 
great guard of this right is expressly guaran¬ 
teed, Art. I, Sec. 9, Cl. 2: “The privilege 
of the writ of habeas corpus shall not be 
suspended unless, when in cases of rebellion 
or invasion, the public safety may require 
it.” It does not say who is to suspend it 
then, but by our inherited precedent it could 
only be by act of Congress. Lincoln, how¬ 
ever, was compelled by the necessity of 
public danger to suspend the writ without 
such consent. 

Related to this personal right is the provi¬ 
sion that no bill of attainder or ex post facto 
laws shall be passed. I have already ex¬ 
plained what a bill of attainder is; and an 
ex post facto law is a law made to try a man 
149 


THE AMERICAN CONSTITUTION 


by after the offence is committed, making 
that a crime which was not crime when he 
did it, or inflicting greater or severer punish¬ 
ment. Closely related to this also is the 
provision that judgment in cases of im¬ 
peachment shall only extend to removal 
from office and that there shall be no for¬ 
feiture or corruption of blood for treason, 
or other offences, Art. Ill, Sec. 3, Cl. 2. 
Clause 1 adopts the English Constitutional 
definition of treason; and finally, the lib¬ 
erties of the people are secured against too 
much personal Government, against usurpa¬ 
tions of the Executive, by the requirement 
that Congress (Art. I, Sec. 4, Cl. 2) shall 
assemble at least once in every year. 

The right of property is expressly secured 
in the Constitution by the clauses I have 
mentioned in the Fifth Amendment and 
the Fourteenth Amendment, that neither 
Nation nor State shall take away a man’s 
property except by due process of law; and 
furthermore, still more effectively, against 
the Federal Government, by the great provi¬ 
sion that there shall be no taxation without 
the consent of Congress, and that there shall 
be no direct taxes at all imposed upon the 
150 


EXPRESSION IN THE CONSTITUTION 


people of the United States. For that is 
the effect of Art. I, Sec. 2, Cl. 3, and it was 
intended to be the effect when it was adopted. 
That is to say, there can be no direct tax 
unless it be imposed upon the several States 
absolutely according to their population. 
Under this, the people of Texas, of Arkan¬ 
sas,—of the poorer Southern States, would 
have to pay the same tax that was paid by 
the people in New York City or Boston; 
and this makes the imposition of such a tax 
prohibitive, and it was meant to be so, for 
the people of the United States will not con¬ 
sent to a tax which is not according to the 
amount of property, but to the mere num¬ 
bers of the people of each State. 

The freedom of the people’s representa¬ 
tives is secured by the provision that mem¬ 
bers of Congress shall be free from arrest and 
shall not be questioned in any other place 
for any speech or debate. By Art. I, Sec. 
8, Cl. 1, all duties, imposts and excises shall 
be uniform throughout the United States. 
The danger of standing armies to the people 
is protected against, as I have told you, by 
Art. I, Sec. 8, Cl. 12; neither the President 
nor Congress can maintain the regular army 

151 


THE AMERICAN CONSTITUTION 


without a vote of the House of Representa¬ 
tives every two years; and (Clause 16), nei¬ 
ther the President nor Congress can inter¬ 
fere with the State militia except when em¬ 
ployed in the actual service of the United 
States. This is further expressly guaranteed 
in the Second Amendment, which also says, 
that the right of the people to keep and bear 
arms shall not be infringed, and the Third 
Amendment, which says that no soldier shall 
be quartered in their houses. The religious 
rights are found in Art. VI, Sec. 3, which 
provides that no religious tests shall ever 
be required as a qualification for office, and 
again in the First Amendment, where Con¬ 
gress is forbidden to make any law respect¬ 
ing the people's religion or its free exercise. 
The same amendment affirms the people’s 
right to freedom of speech, freedom of the 
press, the right of political assembly (which 
I discussed in an earlier lecture) and the 
right to petition the Government for a 
redress of grievances. Then, closely con¬ 
nected with the liberty right is the right of 
the people to be secure in their houses,— 
“An Englishman’s house is his castle.” 
Under the Fourth Amendment nobody, not 
152 


EXPRESSION IN THE CONSTITUTION 


even an officer or a magistrate, or a police¬ 
man, may enter a person’s house or search 
his papers and effects without a formal 
warrant duly issued upon probable cause, 
supported by sworn testimony and stating 
the reason why, the crime charged, the 
places to be searched and what they expect 
to find. The Sixth Amendment guarantees 
to the people the great liberty right of trial 
by jury, of being confronted with witnesses 
against him, of having witnesses in his 
favor; and the Seventh Amendment guaran¬ 
tees trial by jury in civil cases and insists 
upon the common law in any court of the 
United States, while the Eighth Amendment 
prohibits excessive bail, which, you remem¬ 
ber, was one of the methods of evading the 
habeas corpus employed by the Stuart Kings. 
These are all commonplaces, perhaps. The 
right of a man to a jury or a grand jury is 
the cornerstone of our whole social fabric. 
Not to be questioned except, indeed, in our 
insular possessions. But there is a clause 
of the Fifth Amendment which is to be very 
much debated from now on, that is, that 
other constitutional provision which guaran¬ 
tees that no person shall be compelled in any 
U3 


THE AMERICAN CONSTITUTION 


criminal case to be a witness against himself; 
that is, compelled to furnish evidence which 
may convict him of a crime. This, you 
remember, was the great point in the Chicago 
Beef Trust cases. Under a carelessly drawn 
Act of Congress, all corporations engaged 
in interstate commerce were compelled to 
furnish testimony, when desired, by Mr. 
Garfield, head of the Bureau of Corpora¬ 
tions. Mr. Garfield forced the great pack¬ 
ers in Chicago to give him that testimony 
and then, apparently to his surprise and 
that of the President, found that the Fifth 
Amendment protected them from convic¬ 
tion for the offences their own testimony 
had disclosed. 

You may remember the very severe crit¬ 
icism imposed by the President upon one 
judge for his decision sustaining the people’s 
liberties in this particular. With every de¬ 
sire to convict offenders of the Chicago Beef 
Trust, he could not, as an honest judge, 
annul this cardinal guaranty of Anglo- 
Saxon liberty; but after his decision was 
rendered, it was referred to with disapproval 
by the President in a message to Congress. 
In fact, his remarks were almost identical 
*54 


EXPRESSION IN THE CONSTITUTION 


with the remarks that I told you were made 
by James I of the great Coke, when he also 
refused to carry out the wish of the Ex¬ 
ecutive; though the story, widely dissemi¬ 
nated, has happily proven false, that a cer¬ 
tain other judge,—a higher judge,—was ap¬ 
proached by the President or his agent and 
asked whether he would affirm this decision 
if it were appealed and came before his 
court, and made the same answer that the 
great Coke made to King James “Sir, 
when that case comes before me for judg¬ 
ment, I will consider it as becometh a just 
Judge.” 

The next great popular right is that of 
equality,—political equality, and, as the 
President has well said, “Equality of oppor¬ 
tunity.” How is that guaranteed in the 
Federal Constitution? Well, in the first 
place, the Preamble uses the phrase “Gen¬ 
eral welfare,” which seems to imply it. Art. 
I, Sec. 9, forbids titles of nobility. Art. 
IV, Sec. 2, says that the citizens of each 
State shall be entitled to all privileges and 
immunities of citizens in the several States; 
but after the slaves were emancipated, 
these expressions were not considered suffi- 
i55 


THE AMERICAN CONSTITUTION 


cient, and the Fourteenth Amendment was 
adopted. “No State shall make or enforce 
any law which shall abridge the privileges 
or immunities of citizens of the United 
States, nor deny to any person within its 
jurisdiction the equal protection of the 
laws/’ 

These are the six or seven great cardinal 
rights which are expressly in the Constitu¬ 
tion reserved to the people under that name, 
but this by no means ends the category of 
the people’s rights. If the President intends, 
as he says, to enforce the Constitution when 
it represents the people’s rights, but not 
when it represents the people’s wrongs, he 
will have to consider many another sentence 
in the Constitution even with this limited 
view. Although he has the right to call 
together Congress in special session, you 
will see that he cannot prevent their assem¬ 
bling whenever they choose, and they are 
bound to the people to assemble at least once 
every year. Neither the President nor the 
Senate has the power to originate taxation 
(Art. I, Sec. 7). Neither the President nor 
Congress can interfere with the State Mili¬ 
tia except when employed in the actual 
156 


EXPRESSION IN THE CONSTITUTION 


service of the United States. In Art. I, Sec. 
9, CL5, you will find a very important provi¬ 
sion. No tax or duty shall be laid on arti¬ 
cles exported from any State. The clear 
intention of the Constitution was to make 
trade between the States absolutely free, to 
give the power to nobody to control it or 
prohibit it in any way, though when we 
come to discussing interstate commerce we 
shall find a curious change has taken place 
in our view of this matter in the last few 
years. And the next clause says that no 
preference shall be given by any regulation 
of commerce to the ports of one State over 
those of another. Some people think that 
under the new law, the Interstate Commerce 
Commission is giving a preference to Balti¬ 
more and other southern ports over Boston. 

Art. Ill, Sec. i, removes judges from the 
power of the President after they have once 
been appointed, by requiring not only that 
they shall hold office for life, but that their 
compensation may not be diminished dur¬ 
ing their continuance in office, though it 
may be increased. And finally, life, liberty, 
and property are expressly guaranteed, 
not only by the Nation to the individual, 
i57 


THE AMERICAN CONSTITUTION 


but to the individual as against the State 
Governments, by the Fourteenth Amend¬ 
ment. 

The rights of the States and the powers 
of the Federal Government will form the 
subject of our next two lectures. It may 
be well to close this with some consideration 
of the powers given to the President, and the 
powers given to Congress, and compare the 
result with what we found in England. We 
have briefly sketched the rights of the peo¬ 
ple which neither the President nor Congress 
can give away. Now, what powers have 
the people delegated to them ? 

Congress in the first place is not omnip¬ 
otent as it is in England, but its powers 
of legislation are definitely limited to seven¬ 
teen subjects, and to such laws as are neces¬ 
sary and proper for carrying into execution 
both these seventeen powers and all other 
powers which are given by the Constitution 
to the United States Government. As I 
have told you, the Federal Government, the 
Government of the United States, is mainly 
political; so you will find that most of these 
powers are political. That is to say, the 
great power of Government is to collect or 
158 


EXPRESSION IN THE CONSTITUTION 


raise moneys, by duties and excises, for the 
purpose of the defence of the Union and the 
general welfare of the United States. This 
duty is put first; the necessary National 
power to defend the Nation and raise money 
for that purpose. Now, this general wel¬ 
fare phrase is usually misunderstood. It 
is spoken of as if there were a power given 
Congress to pass any law that is for the gen¬ 
eral welfare of the United States. Nothing 
of this kind is in the Constitution. The 
only mention of “general welfare” is that all 
taxes must be for the general welfare of the 
United States; and this, as you know, is an 
old English Constitutional principle. 

The next National power is the usual 
sovereign right to borrow money, to create 
a National debt, and also, of course, to coin 
money, regulate weights and measures, and 
provide against counterfeiting. Then, Con¬ 
gress has the necessary National power of 
declaring war; this is given to Congress, and 
to Congress alone, not to the Executive. 
This is also true in England; but the Pres¬ 
ident has far more power in this particular 
than has the King of England, for the Pres¬ 
ident can provoke a war. He can, for 
i59 


THE AMERICAN CONSTITUTION 


instance, mass the army on the frontier, or 
order the navy on a minatory expedition. 
This even the King of England could not do. 
Our President is Commander-in-Chief; not 
so the King. With the power to declare war 
goes, of course, the power to support armies 
and navies; and this is also given to Con¬ 
gress exclusively, as it is in England to 
Parliament,—to make rules for the Govern¬ 
ment of the army and navy, to provide for 
calling forth the State Militia to execute 
the laws of the Union when necessary. 
This is the only case where, under the 
Federal Constitution, the National Congress 
can, as it were, give orders to a State; and 
when the Militia are so called out, Congress 
has power to govern them. Then Congress 
is given power to determine who shall be 
considered United States citizens. It is 
given the sovereign power of issuing patents 
to inventors, and copyrights to authors, 
these being the only monopolies recognized 
by our law. It has sole power to punish 
piracies and felonies on the High Seas, and, 
of course, to erect and govern forts, maga¬ 
zines, dockyards, and other needful build¬ 
ings for the National defence. All these 
160 


EXPRESSION IN THE CONSTITUTION 


powers you may fairly call political; and 
now we come to only three of the seven¬ 
teen which may be considered domestic or 
social. And it is certainly a coincidence 
that these two or three matters, which form 
the exception to the general rule that the 
power of Congress is purely political, have 
caused more doubt and led to more litiga¬ 
tion than all the rest of them put together. 
Congress is given power to regulate bank¬ 
ruptcies throughout the United States. Con¬ 
gress is given power to establish post-offices 
and post-roads, and it has recently been 
seriously advanced that this simple provi¬ 
sion gives the National Government the 
absolute dominion over all railroads. And, 
finally, Congress is given power to regulate 
commerce with foreign nations and among 
the several States. These last are the four 
words in the Constitution now most dis¬ 
cussed, and under them the President seems 
to think that the whole principle that the 
Governments powers are mainly political 
may be got rid of. These words were 
originally put in the Constitution, not with 
the notion of giving the Federal Govern¬ 
ment the right to interfere or to regulate 
161 


J 


THE AMERICAN CONSTITUTION 


interstate commerce, but for the purpose 
of preventing the States from doing so. 
Nevertheless, they may technically give to 
Congress the power to regulate, or even to 
forbid; and under the word “commerce” 
it is now proposed to include not only 
the goods or commodities actually trans¬ 
ported in interstate commerce, or the in¬ 
strumentalities of transport, steamboats or 
trains of cars, which was all the word was 
originally applied to, but even manufactures 
made by any corporation doing business in 
more than one State, or where the goods 
manufactured or any part of them are ulti¬ 
mately sold across State lines. Nor is this 
all. Not only are all articles of commerce 
and all manufactures so to be controlled, 
but even the persons or corporations who 
own them and the laborers or employees 
who make them. This, we shall specially 
consider in our last lecture. I would only 
now call attention to the fact that this 
phrase, “ commerce among the several 
States,” one of the only three phrases in 
all the powers given to Congress which 
are not purely political, under the inter¬ 
pretation proposed by President Roosevelt 
162 


EXPRESSION IN THE CONSTITUTION 


would alter our Constitution more radically 
than almost any amendment could do. It 
will cease to be purely political, but will 
thrust its hand between every man and his 
neighbor, between every man and his own 
property. I told you at the beginning that 
the English idea was that an Englishman’s 
life and his liberty and his worldly goods 
lay under his own government or that of 
his neighbors, and under laws made by 
people in the same community, considering 
only its welfare, which laws were tried at 
home in the domestic courts. This change 
will, in the long run, absolutely subvert 
that principle. The States will lose control 
of most of their business affairs, will lose 
the power to tax their own enterprises, will 
see their Courts shorn of their jurisdiction. 
Hardly any business will be so small, so 
local, as to be left to the State Power to 
control. We shall all be under the Govern¬ 
ment of Washington, under the legislation 
of Congress, under the judgment of the 
Supreme Court at Washington, quite as 
completely and much more hopelessly than 
the English of the Twelfth Century were 
under the power of the royal Chief J ustice, 
16 3 


THE AMERICAN CONSTITUTION 


the royal Chancellor and the lawmaking 
by royal decree of the Norman Kings. 

Of the judicial branch there is little to 
say except that the common law must pre¬ 
vail everywhere and that the Federal Courts 
have now, as they should have, jurisdiction 
of all suits invalving the Federal Constitution 
or laws, or between persons residing in dif¬ 
ferent States, if either person wishes it. 

Coming lastly to the Executive, the Pres¬ 
ident,—who corresponds to the English 
King. As I have already anticipated, he 
has far more power in one particular than 
has the English King. /That is to say, he 
can make war or be the cause of war. He 
has in another respect far more power. £ He 
can control the Legislation. Under the 
modern English Constitution, the King, as 
you know, has no veto. No King, not the 
popular Edward VII, would dare to say no 
to any law which has passed Parliament. 
That has not even been tried since the reign 
of Queen Anne. Never even by George III. 
Our Executive has the right to declare void 
any law passed by Congress unless it be 
afterwards passed over his veto by two- 
thirds of each house, a thing which has 
164 


EXPRESSION IN THE CONSTITUTION 


happened very few times in the history of 
the country. ^Thirdly, our President may 
make treaties with the consent of the Senate. 
These three great powers, the absolute 
command of the Army and Navy in such a 
way that he may at any moment bring on a / 
war, limited only by the right of Congress 
not to vote appropriations; the correspond- 
ing right to make treaties; and the right to 5 
veto legislation;—are all powers which the 
King of England does not have. He shares 
with the King of England the right to name 
Ambassadors to foreign countries. He has 
another power greater than the King of 
England, however, in that he may form his V 
own cabinet. The King has his forced 
upon him by a majority of the House of 
Commons. Both King and President, when 
they assume office, make oath that they will 
support the Constitution. The King may 
still dismiss Parliament, though he prac¬ 
tically never does so without a vote of the 
majority. Our President may not do so, 
though he may convene Congress at any 
time. Our President may be impeached. 
The English King may still be deposed by 
Parliament, and if they deem wise, put to 
16 5 


THE AMERICAN CONSTITUTION 


death. The general duty of both is to 
execute the laws, though our President has 
far more power in that particular than has 
an English King. 

It will be seen, therefore, that our Pres¬ 
ident has, on the whole, during his term of 
office, far greater powers than the English 
Constitutional King. That was the reason 
which led the founders to regard this part 
of our Constitution with so much apprehen¬ 
sion. And that was the reason which led 
George Washington to decline election for 
a third term,—an example which has been 
followed by all our Presidents since his time. 


VI 


DIVISION OF POWERS BETWEEN LEGIS¬ 
LATIVE, EXECUTIVE, AND JUDICIAL; 
AND BETWEEN THE FEDERAL GOV¬ 
ERNMENT AND THE STATES 

NTALYSIS of the Constitution shows 



ii that it is largely composed of nega¬ 
tives; that is, what the Federal Government 
may not do, or what the States may not 
do; powers that are kept by the people 
in their own hands until they choose to 
amend the Constitution. Contrary to the 
apparent impression, the things reserved to 
the people are as many in number and 
greater in importance than those delegated 
to the Federal Power; and they can never 
be lost to them but by amendment duly sub¬ 
mitted to the people or to the States. The 
people are the only judge of what are “the 
people’s rights and what are the people’s 
wrongs”; it is not for the Executive to 
judge of the Constitution or what is “work- 


167 


THE AMERICAN CONSTITUTION 


ing for good government.” Mr. Roosevelt, 
in his life of Cromwell, criticises the Pro¬ 
tector for doing this. “Unfortunately,” he 
says, “ Cromwell made the mental reserva¬ 
tion that he should be himself the ultimate 
judge of what good government was.” 

Of the powers of the several departments, 
the Legislative is first in importance, but 
the Executive, the President, has on the 
whole distinctly more power than the King, 
though for only a term of years. The feeling 
that the President was given too great power 
was very strong among the founders of the 
United States, and for that reason Wash¬ 
ington set the example of declining a third 
term. I quote from Roosevelt’s life of 
Cromwell again, “The plea that the safety 
of the people and of the cause of righteous¬ 
ness depended upon his unchecked control 
is a plea always made in such cases, and 
generally without any basis in fact. . . . 
It was infinitely more essential to the salva¬ 
tion of the nation that Lincoln should be 
continued in power than it was to the sal¬ 
vation of the Commonwealth in 1654 that 
Cromwell should be continued in power. 
Lincoln would have been far more excusable 
168 


DIVISION OF POWERS 


than Cromwell if he had insisted upon keep¬ 
ing control, yet such a thought never entered 
Lincoln’s head. ... So he (Cromwell) lost 
the right to stand with men like Washington 
and Lincoln of modern times and with the 
very few who, in some measure, approached 
their standard in ancient times.” 

The Judicial branch has really no power 
at all, in the sense of political power; its 
sole great duty is to guard the Constitution 
of the United States, to hold the balance 
even between the Executive and the Con¬ 
gress, or between the States and the Nation. 

What is the exact division of all these 
powers between the States and the Nation ? 
and what exactly is that group of most im¬ 
portant matters which still remains reserved 
to the people ? For this purpose it is possi¬ 
ble to draw a chart which shall exactly show 
the state of things at a glance (see Frontis¬ 
piece.) Our whole sphere or circle will rep¬ 
resent all possible powers of a free and 
sovereign Nation, political, executive, legis¬ 
lative. Zone “A” represents those powers 
which are allowed to the Federal Govern¬ 
ment, and zone “B,” those powers which 
are allowed to the States; where the two 
169 


THE AMERICAN CONSTITUTION 


zones cross, so that a small area is covered 
by both, we shall have “AB”; that is to 
say, those powers which can be exercised 
both by the States and by the Federal Gov¬ 
ernment. There are many such in fact,— 
notably the great realm of taxation—but 
there is only one or two instances expressly 
so stated in the Constitution. These blue 
zones—“A” and “B”—are all the powers 
permitted to our Governments by the peo¬ 
ple who set them up; and if our whole sphere 
represents all possible legislative power, it is 
perhaps a rough approximation to say that 
these two zones “A” and “B,” what may 
be done by the Nation and what may be 
done by the States, represent the great bulk 
of legislative power as it has been hitherto 
understood in constitutional countries. It 
does not, on the other hand, permit any 
principle that is not republican in form, or 
possibly anything destructive of private 
property, liberty or the other natural rights. 
All these matters, with the various political 
powers that are withheld from the Federal 
Government or from the States respectively, 
will find a place in the opposite red zones, 
“X” and “Z.” Let us call what is for- 


170 


DIVISION OF POWERS 


bidden to the United States “X” and draw 
that zone directly opposite to the zone of 
things permitted to the United States. In 
the same manner, let us call these things 
which are forbidden to the States zone “Z,” 
in the part of the circle opposite to zone 
“B.” We shall again, in like manner as 
before, have a certain section or realm 
where the two zones “X” and “Z” cross, 
and this part of our circle will exactly rep¬ 
resent all those powers or things which are 
forbidden both to the States and to the Na¬ 
tion. Those powers, by inference, still re¬ 
main with the people; but there are certain 
other matters which are expressly reserved 
to the people, which fall in the centre of our 
circle “Y”—properly left white—that part 
of the sphere of power which has not been 
covered by any of our delegations of power 
as we have drawn them on the chart. 

Not only does this diagram show the 
exact relation of all the powers at a glance, 
but it well indicates still finer shades of 
meaning. That is to say, the area marked 
“A” simply represents those matters or pow¬ 
ers delegated in the Federal Constitution to 
the Federal Government, without anyexpres- 
l 7 l 


THE AMERICAN CONSTITUTION 

sion in the Constitution itself whether they 
are for that reason forbidden to the States. 
The Constitution is merely silent on that 
point. This matter has been left, therefore, 
to court decision and common sense. But 
we have the other end of zone “A,” section 
“AZ,” where the zone of powers forbidden 
to the States crosses that of the powers al¬ 
lowed to the United States, so whatever we 
put in this zone exactly represents those 
powers which, in the Constitution, are dele¬ 
gated by the people to the United States, 
and at the same time expressly forbidden to 
the States—this is the field of Centralization, 
of Imperialism. And the same thing is true 
of the powers permitted to the States or left 
with them. There are some that are simply 
permitted to the States, without more, “ B,” 
and these may perhaps be exercised also by 
the Federal Government. That has been 
matter again for court decision and com¬ 
mon sense. But the other end of zone “ B,” 
where the zone of things forbidden the 
Federal Government crosses the zone of 
things allowed to the States, we have divi¬ 
sion “BX,” that is, powers which are left 
with the States and expressly forbidden to 
172 


DIVISION OF POWERS 


the Federal Government. We have, there¬ 
fore, nine grand divisions, and the central 
one “Y,” represents most of what we were 
talking of in our earlier lectures—the car¬ 
dinal rights of the people. 

Now just how, in fact, are all possible 
powers of government or of legislation to 
be divided under our Constitution ? This 
is what the people call the study of States’ 
rights, and I think it is likely—so important 
is it—to be the principal political issue of 
the next century. We must not be preju¬ 
diced against the term “ States’ rights,” be¬ 
cause we associate the use of the phrase 
with secession; the States never had a right 
to secede, for the States did not make the 
Federal Government; the people did. The 
constitutional falsity of the right to secede 
was established by the War of the Rebellion. 
Let us therefore approach the problem with¬ 
out prejudice, in a fair and honest way, re¬ 
membering both what our founders desired, 
what their difficulties were, and what the 
lesson of the past history of the English 
people teaches us. Let us remember that to 
deny a right to State or Nation because the 
people wish to retain it to themselves is not 

m 


THE AMERICAN CONSTITUTION 


in the least a narrow or unpatriotic con¬ 
struction of our Constitution. I have failed, 
indeed, if I have not shown you that when 
our ancestors made this Nation, they did it 
with the express intent of not giving to the 
government they were creating all powers 
which have been enjoyed by other sovereign 
governments. It was a wonderful and tre¬ 
mendous experiment for that reason. They 
desired to establish a republican form of 
government; and they did not intend to 
give to their government any royal or im¬ 
perial powers, or any right to play the part 
that had been played by conquering kings 
in earlier centuries. To say, therefore, that 
a power is denied to the Federal Govern¬ 
ment, may merely mean that they held the 
liberties of the people more sacred, and the 
power itself dangerous; and probably in all 
such cases the history of times past will jus¬ 
tify it. For every one of the powers so re¬ 
fused the Federal Government is a power 
which, in the centuries behind us, has proved 
dangerous to the liberties of the English 
people when enjoyed by the King or a 
centralized government. 

Let us take up first what is permitted to 

m 


DIVISION OF POWERS 

the United States. We have necessarily in 
part anticipated some of these matters in 
our last chapter. What the people of the 
United States delegated by their Constitu¬ 
tion to the Federal Government in 1789 is 
represented in our chart by zone “A”; and 
that part of those powers which they gave 
to the United States and at the same time 
prohibited to the States, “ AZ,” represents 
exactly the National powers of the American 
Government. That is to say, only those 
things which are both given to the Federal 
Government and forbidden to the States or 
to the people, are powers which the United 
States really enjoys in its National sovereign 
capacity. We will therefore take these first. 
In this segment of a zone, “AZ,” must lie 
all the National powers which the Central 
Government can constitutionally exercise. 
Both Congress and President, to read their 
title clear to anything they wish to do or 
any law they wish to enact, have got to find 
its authority given by the people in those 
clauses of the Constitution which I shall now 
enter in this section. Substantially all pow¬ 
ers of legislation that are given Congress are 
found in Section 8 of Article I, and they 
U5 


THE AMERICAN CONSTITUTION 


number 17. They are all, except three or 
four, political powers; being the usual polit¬ 
ical powers that are enjoyed by independent 
and sovereign nations; although nothing is 
expressly said about the acquisition of terri¬ 
tory. Congress is given power to declare 
war; and the annexation of territory must 
be justified, under those three words, as a 
necessary power resulting from the right to 
make treaties of peace, which, of course, is 
included in the right to declare war. A usual 
consequence of treaties having been ac¬ 
quisition of money or territory, our Supreme 
Court has upheld the action of Congress in 
acquiring territory in this manner. 

Congress is given power to borrow money 
on the credit of the United States; and 
probably this must be done only for the 
debts or needs of the United States, not, as 
was recently done, in the interest of private 
business. Congress only may establish an 
uniform rule of naturalization, the making 
of foreigners into citizens. It alone may 
establish a national bankruptcy law. It 
alone may coin money, regulate weights and 
measures, and provide for counterfeiting. 
It alone may establish post-offices and post 
176 


DIVISION OF POWERS 


roads, but probably only for the purposes of 
post roads, not, as was recently proposed, to 
use this as the entering wedge for the direct 
control of the entire railroad system of the 
United States. It may create monopolies 
for new inventions or copyrights only, and 
for a limited time. It may, at its own 
pleasure, erect courts inferior to the Su¬ 
preme Court, not necessarily even with 
appeal to it, and these courts must always 
proceed according to the common law, with 
jury trial, and have the necessary judicial 
powers of all courts; it is doubtful, there¬ 
fore, whether their right of punishment for 
contempt may be interfered with; Congress 
may choose not to establish a court, but 
when it has done so it must be a court in the 
historical English sense, and not the amor¬ 
phous creation of Congress. It may define 
and punish piracies and felonies on the high 
seas. It may provide and maintain a Navy, 
though query whether a State may not do 
so also. It may make rules for the govern¬ 
ment of the Army and Navy, and for the 
militia, but only when in the service of the 
United States. It may exercise exclusive 
legislation over the District of Columbia and 
l 77 


THE AMERICAN CONSTITUTION 


places purchased with the consent of the 
State, in which the same shall be, for forts, 
magazines, arsenals, dockyards and other 
needful buildings. Without such consent or 
for any other purpose, the United States 
Government has no power to own, as a 
private owner, one rood of land. Finally, it 
alone may declare war. 

And even all these powers are not given 
without limitation. For instance, no army 
can be supported by the Nation for more 
than two years without a new vote of the 
popular house of Congress. 

Then we find here two or three other 
most important powers which are not polit¬ 
ical; greatest of all being the power to reg¬ 
ulate commerce among the several States. 
Nearly all the increase of National power 
over the people’s affairs that is now con¬ 
templated is based upon these four words. 
If the extremists have their way, the In¬ 
terstate Commerce power will become the 
means of remodeling, utterly making over the 
Constitution, obliterating its general great 
division between political and social or do¬ 
mestic powers or laws, and taking away the 
ordinary business affairs of the people from 
178 


DIVISION OF POWERS 


their home courts and from State laws and 
placing them with the political powers un¬ 
der the control of the Federal Government. 
This, therefore, is one of the two or three 
principles that are going to be most important 
for us, in the future, rightly to determine. 

We next come to Clause 18, which has 
been almost as much discussed as the Inter¬ 
state Commerce Clause. This is the only 
general grant of legislative power to Con¬ 
gress. All other matters are specific. But 
at the end of all these specific powers, Con¬ 
gress, by this clause, is given a general 
authority “To make all laws which shall be 
necessary and proper for carrying into execu¬ 
tion the foregoing powers and all other pow¬ 
ers vested by this Constitution in the United 
States or any department or office thereof/’ 
The extreme loose constructionists, the ex¬ 
treme centralists, go to the length of saying 
that under this section Congress can pass 
any act which they consider either necessary 
or proper for any of the purposes indicated 
throughout the Federal Constitution; for 
example, because Congress is given power 
to regulate commerce among the several 
States, they can, if they choose, forbid such 
179 


THE AMERICAN CONSTITUTION 


commerce entirely, or they could, on the 
other hand, provide that all such commerce 
must be conducted by Federal officers 
licensed for the purpose, or by corporations 
with a Federal charter. Or even that the 
goods transported should be manufactured 
under the Federal Government’s notions of 
what is right and wrong. The Democrats, 
on the other hand, have always maintained 
that these words “necessary and proper” 
should be read as written. They mean both 
necessary and proper; and of that necessity 
not Congress which makes the law, but the 
Courts shall judge. The Supreme Court in 
its decisions has taken a middle ground. 
While not holding that a law must be both 
proper and necessary, they do hold that a 
law must be proper in their sight, and also 
reasonably adapted to the end proposed. 
That is to say, if the courts can see on the 
face of a law that although not the best 
possible method, it is still a method fairly 
applicable to the object proposed, they will 
sustain the law under this power. 

But now in all these matters also comes 
another question, whether they should fall 
in our class “A,” or, as we have placed 
180 


DIVISION OF POWERS 


them, in our class “ AZ” ? I have put them 
all in “AZ,” although often, as with inter¬ 
state commerce, it has been held that a 
certain power of regulation is left with the 
States, at least until Congress chooses to 
interfere. When there is a National law on 
the subject, the State law must give way; 
and the same thing is, of course, true in the 
matter of bankruptcies. Our State insol¬ 
vency laws are suspended while and when 
the Nation has a national bankruptcy act. 
There is no doubt, however, that a State 
cannot declare war, or regulate commerce 
with foreign nations, or borrow money on 
the credit of the United States, or establish 
rules for naturalization, or coin money. We 
conclude, therefore, that these seventeen leg¬ 
islative powers given to Congress are usu¬ 
ally exclusive; that is to say, they leave no 
power with the States to legislate on those 
subjects; certainly not, when Congress has 
passed an act. 

The next great subject of National power 
is, of course, the Executive power generally 
(II, 2). The Executive power of the United 
States is vested in the President. In sub¬ 
stance he has the power and the duty of 
181 


THE AMERICAN CONSTITUTION 


executing the laws; he appoints all National 
officers; he is Commander-in-chief of the 
Army and Navy; and he generally has the 
powers of a constitutional British King ex¬ 
cept in so far as those powers are taken 
from him in other parts of the Constitution 
and entrusted to other bodies. He cannot 
declare war, but he may, with the consent 
of two-thirds of the Senate, make a treaty. 
And at this clause we find our first instance 
of usurpation of powers by Congress or by 
one branch of Congress. The President is 
given power to make treaties, and the inten¬ 
tion of the Constitution clearly is that that 
power shall be full and merely be confirmed 
by the Senate in the ordinary way that other 
executive acts are confirmed. That is to 
say, they have no business to interfere with 
the President in his negotiations of a treaty, 
and they ought to confirm it, when nego¬ 
tiated, unless there is really some serious 
objection. Nevertheless, the Senate has 
taken it upon itself practically to arrogate 
unto itself the whole right of treaty-making 
power. You will remember that they dis¬ 
approved a very important arbitration treaty 
with England made by Secretary Hay; they 
182 


DIVISION OF POWERS 


have refused reciprocity treaties negotiated 
under McKinley and others; they have op¬ 
posed treaties about Newfoundland and 
Canada; and they have assumed such an 
attitude in relation to San Domingo as to 
make it necessary for President Roosevelt 
to go ahead alone. It is not too much to say 
that it is almost impossible for a President, 
however intelligent and patriotic, to get a 
treaty confirmed against which a small body 
of Senators have any objection. This, there¬ 
fore, is a clear case of usurpation of con¬ 
stitutional power by the Senate. 

Substantially the only limitations on the 
President’s executive power are that he 
may not prevent the Houses of Congress 
from assembling, nor may he adjourn them 
when assembled (but he has the power to 
call them in special session); that he must 
be a natural-born citizen; and that he must 
make oath to support the Constitution of 
the United States. Finally, he, with all other 
civil officers, may be removed from office 
by impeachment. 

The judicial power of the Federal Gov¬ 
ernment falls usually in our zone “AZ.” 
But there are many restrictions, in “X.” 
183 


THE AMERICAN CONSTITUTION 

You remember how important a part this 
was of the English Kings’ prerogative,—how 
the Norman Kings almost destroyed the 
liberties of the people by removing the 
judicial power from their own common law 
courts and centralizing it with the Chancellor 
or the King’s Court at London, where cases 
both civil and criminal could be, and in 
fact were, tried without a jury. Well, we 
have protected against this latter danger 
(Amendment VII) by providing that no case 
removed to a Federal Court shall ever be 
tried except under the common law, and we 
have further provided (Art. Ill, 2) that the 
trial of all crimes must be by jury and be 
held in the State where the crimes were 
committed, even if tried in a Federal court. 
We have, however, given the National Courts 
authority to determine all cases arising 
under the Constitution or a Federal law 
(“AZ”), and we have furthermore provided 
that the Federal Courts may try all cases 
“between citizens of different States” (“A” 
or “AB”). Now these five words, like the 
four words of the Interstate Commerce 
Clause, have caused and are causing a 
change in the relations of the Nation to the 
184 


DIVISION OF POWERS 


State, probably unforeseen by our ancestors. 
In those days, suits between citizens of 
different States were comparatively rare. 
People’s business rarely extended beyond 
State lines. To-day it nearly always does, 
even in the case of individuals. Moreover, 
nowadays, the great bulk of the business of 
the country is done by corporations; and 
though corporations still, nearly all, work 
under State charters, it by no means happens 
that the charters are given in the State where 
it does business. On the contrary, a busi¬ 
ness corporation doing business in Boston 
or New York is quite as likely to be a cor¬ 
poration of the State of Maine, or West 
Virginia, or New Jersey, as of the State 
where it really is situated. The conse¬ 
quence is that a vast mass of transactions, 
and the great majority of business law suits 
is growing to be between parties who are 
technically of different States, and this state 
of things has transferred the great bulk of 
business from the State to the Federal 
Courts. And if the President’s proposal to 
have all large corporations take out a Federal 
charter were to pass into law, this would be 
almost universal, and any dispute or busi- 
185 


THE AMERICAN CONSTITUTION 


ness involving a corporation—and nearly all 
business would in fact be conducted by cor¬ 
porations in such a case—would be removed 
from the State Courts to be tried in the 
Federal Courts. 

Still, the Federal Government has no 
power directly to interfere with the States 
except if they fail to maintain a republican 
form of government and except also (Art. 
IV, Sec. i) that full faith and credit shall 
be given in each State to the public Acts, 
records, and judicial proceedings of every 
other, and that Congress may pass laws 
carrying this provision into effect (“A”). 
Finally, in Art. IV, Sec. 3, is the great 
phrase on which the expansion of the Nation 
is now proceeding. Congress has power to 
admit new States into the Union (“AZ”), 
though it may not alter the boundaries of 
old States without their consent (“X” or 
“AB”), and in the same section Congress is 
given power to make “all needful rules and 
regulations respecting the territory or other 
property belonging to the United States” 
(“AZ”). On these two commandments 
hang all the law and profits of imperialism. 
Nothing is said about the territory from 
186 


DIVISION OF POWERS 


which new States may be admitted, and 
there is no doubt that the founders, at least 
in this section of the country, thought it 
was limited to the territory acquired from 
England in the Revolution. That notion 
was disposed of by Thomas Jefferson in his 
acquisition of Louisiana. Still it was per¬ 
haps thought until recently that the power 
to acquire new territory, certainly to make 
new States out of it, was limited to the con¬ 
tinental territory of North America. 

Government of all such territory before 
it is made into States is based on the second 
clause of the Article, that Congress may 
make needful rules concerning it. Whether 
those “ needful rules ” include the withhold¬ 
ing of the Constitution, or the administering 
of the Constitution in such small doses as 
it may deem healthy for the patient, is a 
matter still in discussion, and not perhaps 
yet settled. One portion of the Constitution 
at least must “ follow the flag ”—the Thir¬ 
teenth Amendment, for it says in so many 
words that it applies to any place subject 
to the jurisdiction of the United States. 

So much for the Federal powers given to 
the Federal Government in the Constitu- 
187 


THE AMERICAN CONSTITUTION 


tion and forbidden to the States. The great 
Fourteenth Amendment, though, which was 
passed after the Civil War, added one tre¬ 
mendous principle. Passed in theory to 
protect the negroes in the South, it practi¬ 
cally gave a new bill of rights to all the citi¬ 
zens of the United States and gave the Fed¬ 
eral Government the power to prevent the 
States from passing laws in contradiction 
therewith. That is to say, while the States 
already by their own Constitutions adopted 
the cardinal principle of the Bill of Rights, 
that life, liberty, or property could not be 
taken away without due process of law, 
by the Fourteenth Amendment the United 
States Government was empowered also to 
guarantee this to all United States citizens, 
and even as against the States; so that the 
people in their important liberty and prop¬ 
erty rights have now not only the guaranty 
of their own State Constitutions, as State 
citizens, but of Section i of the Fourteenth 
Amendment, as United States citizens, which 
puts, as it were, the whole authority of the 
Federal Government also behind the cardi¬ 
nal proposition that no State shall deprive 
any person of life, liberty, or property with- 
188 


DIVISION OF POWERS 


out due process of law, nor deny to any 
person the equal protection of the laws. 

The things forbidden to the States simply 
(“ Z”), are generally those National political 
powers which were reserved to the Nation 
in our division “A” matters concerning na¬ 
tional taxation, revenue, defence, and the 
control of commerce among the States. The 
States are forbidden (I, 2) to make their 
elections for members of Congress less 
popular than for the lower house of the 
State Legislature. In the next clause they 
are forbidden to elect to Congress a man 
who has not been for seven years a citizen 
of the United States; but the great clause 
that goes into “Z” is Art. I, Sec. 10: No 
State shall enter into any treaty, alliance, or 
confederation, grant letters of marque, coin 
money, issue paper money, etc., with the 
same broad guaranties of human liberty, as 
to bills of attainder, ex post facto laws, etc., 
that we found forbidden also to the Federal 
Government. Then, in the next clause, 
they cannot lay duties on imports or exports 
nor impose tonnage duties, nor keep troops 
or ships of war, or engage in war un¬ 
less actually attacked. They are forbid- 
189 


THE AMERICAN CONSTITUTION 


den (IV, i) not to give full credit to the 
public acts and court decisions of other 
States; and (Sec. 2), not to extend to the 
citizens of other States all the privileges they 
extend to their own citizens. Finally, there 
are the great provisions of the Fourteenth 
Amendment we have discussed above. 

Perhaps the next logical thing is to take 
what is forbidden to the United States. This 
zone we mark “X”—red, horizontal lines 
—and it has the modifications of “ BX,” per¬ 
mitted to the States and forbidden to the 
Federal Government, and “ZX,” forbidden 
to both the States and the Federal Govern¬ 
ment. Taking the plain restrictions first, 
they have been somewhat anticipated. Per¬ 
haps the greatest principle is the insistence 
on a republican form of government (Art. 
IV, 4). Art. I, Sec. 2, the House of Repre¬ 
sentatives (corresponding to the House of 
Commons in England) is to be chosen every 
second year by the people of the States. In 
the same section, third paragraph, is the ex¬ 
traordinary withholding of the power of 
direct taxes from the Federal Government. 
This I have adverted to. Direct taxes being 
most distinctly a sovereign power, their pro- 
190 


DIVISION OF POWERS 


hibition to the Federal Government shows 
how little of a sovereign the framers in¬ 
tended that to be. Section 4 provides that 
Congress must assemble at least once a 
year, thus even oftener than the House of 
Commons, which, in the time of Cromwell, 
was established for three years, though it 
actually now meets every year. 

The usual constitutional privilege of free¬ 
dom from arrest and freedom of debate is 
extended in Section 6, and the members of 
the Legislative body are forbidden from 
holding salaried offices in the United States. 
Section 7 copies the English constitutional 
provision that money bills must be started 
by the popular house; and here we find a 
second great usurpation of our Upper House. 
This clause of the Constitution intended to 
adopt the English principle, founded and 
fought for for many centuries, that taxation 
bills should be made by the people through 
their representatives and should only be in¬ 
troduced in the Lower House, as in England, 
they can only be introduced by the House of 
Commons. Here, of late years, under the 
fiction of amendments, the Senate has ar¬ 
rogated to itself the lion’s share of the 


THE AMERICAN CONSTITUTION 


power of taxation and appropriation. Every 
year there is a struggle on this point. 
The House originates all appropriations in 
what is called the General Appropriation 
Bill. In the same way they originate all 
tariff acts—the Wilson Tariff, for instance, 
under Cleveland—but when such bills go 
to the Senate they are amended and altered 
to such an extent that the Senate might as 
well strike out all but the enacting clause. 
The greater power and discipline of the 
Senate make this possible. The House is 
ruled by majority vote, at least when the 
Speaker permits it; but the Senate is prac¬ 
tically ruled, that is, legislation may be 
blocked by the will of one Senator; more¬ 
over, the Senate has continuity, in that only 
one-third of its members can change at 
any Congress, while practically seats in the 
Senate are held for life, except in rare in¬ 
stances. So here we note another invasion 
of constitutional right, this time again by 
the Senate, on the will of the people as ex¬ 
pressed in the Constitution. 

Section 8 provides that taxes must be uni¬ 
form. The Federal Government (Section 
9) is forbidden to suspend the writ of habeas 
192 


DIVISION OF POWERS 


corpus, to pass bills of attainder, to impose 
export taxes, and to prefer one port or the 
ports of one State over those of another. 
Money can only be paid out on appropria¬ 
tions and expended for the purpose indicated, 
and titles of nobility are forbidden. Article 
III incorporates the great provision of the 
English Constitution that judges must hold 
their office during good behavior for a fixed 
compensation. I told you how a Missouri 
Congressman had introduced a bill that all 
judges should be removable at the will of 
the President. This would, of course, re¬ 
quire an amendment to the Constitution, 
and the people will be far too intelligent to 
consent to it. Mr. Bryan, however, has 
proposed that all Federal judges should be 
elected and not appointed by the President. 
The wisdom of this may be questioned. 
Nominations by the people for judges or 
minor offices have not, in our history, been 
nearly so intelligent as their nominations for 
the President. We have had very few Presi¬ 
dents whose nomination of high judges we 
might not trust rather than the chance of 
political caucuses. And if Mr. Bryan pro¬ 
poses to do away with the life tenure of Fed- 
193 


THE AMERICAN CONSTITUTION 


eral judges, he is striking at one of the most 
valuable points of both the British and the 
American Constitution, which, as you re¬ 
member, was established only after many 
centuries of struggle against James I and 
Charles, in the Act of Settlement after the 
English Revolution. The question of elec¬ 
tion or appointment does not so much 
matter; but a permanent tenure seems es¬ 
sential. 

To elect Federal judges, however, would 
require an amendment to the Constitution, 
and not only this, but it would be difficult 
to provide the machinery. Are judges of 
the Supreme Court, for instance, to be 
elected by the whole people of the United 
States and judges of the Circuit Courts by 
the people of the representative circuits ? 
This would require a whole machinery of 
election which we have not now got. The 
argument against appointment by the Pres¬ 
ident, too, is based on a misconception. 
Undoubtedly the President fairly represents 
the will of the people for the time being; 
and he has a perfect constitutional right to 
designate judges of his own way of thinking. 
I have sometimes in these lectures criticised 


194 


DIVISION OF POWERS 


presidents for interfering with the judiciary 
or blaming their decisions, but one must 
frankly recognize the necessity of appoint¬ 
ing judges in accord with the prevailing 
politics of the time. We have, for instance, 
embarked on a national policy in connec¬ 
tion with the Philippine Islands; whether 
rightly or wrongly, the country is at present 
committed to it. It would be perfectly im¬ 
possible for any President to appoint a 
judge of the Supreme Court who he thought 
was likely to take a strict constitutional view 
of the case and insist on extending habeas 
corpus, indictments, trial by jury, and other 
Anglo-Saxon safeguards to the people of the 
Philippine Islands. The fact is, the weap¬ 
ons of English liberty are meant to be worn 
only by Anglo-Saxon peoples, including, of 
course, the Scotch and Irish, and it is an 
example of fantastic logic, than which noth¬ 
ing can be more dangerous, to insist at once 
on extending them to the brown or yellow 
races under our dominion. 

Section 2 forbids crimes to be tried other¬ 
wise than by jury. Section 3 defines treason 
as defined by the modern English Constitu¬ 
tion. Art. V, no State shall ever be de- 
i95 


THE AMERICAN CONSTITUTION 


prived of its two senators, even by amend¬ 
ment of the Constitution—this is the right of 
rebellion of which I spoke, both “X” and 
“XZ”—and Art. VI (“X” only) forbids 
religious tests for office. 

The Amendments, being the National bill 
of rights, mainly fall under the head we are 
now discussing, plain “X”; that is, they do 
not control the States, which had their own 
guarantees. The first nine apply only to the 
Federal Government. Art. I guaranteeing 
free religion; Art. II, the right to bear arms; 
Art. Ill forbids the quartering of soldiers. 
Art. IV forbids search warrants without 
reasonable cause, and generally establishes 
the right of a citizen to the privacy of his 
own possessions. Art. V makes indict¬ 
ments necessary for a man to be tried for 
any crime; forbids his being tried twice for 
the same offence, and forbids criminating 
evidence—that is to say, compelling a man 
to be a witness against himself. I shall dis¬ 
cuss these two matters later. This impor¬ 
tant article also incorporates in the Na¬ 
tional Constitution the great clause of Mag¬ 
na Charta, that no one shall be deprived of 
life, liberty, or property without due process 
196 


DIVISION OF POWERS 


of law, and also that other section of Magna 
Charta which forbids the taking of a man’s 
property for public purposes without just 
compensation; and Art. VI requires a petit 
jury for the actual trial of the crime, and 
requires that no person shall be detained 
without being told why—this last being the 
right to law which I spoke of in my first 
lecture. Art. VII requires jury trial in 
civil cases. Art. VIII forbids excessive bail 
and cruel punishments. The eleventh article 
of amendment forbids suits against a sover¬ 
eign State. The thirteenth abolishes slav¬ 
ery. The fourteenth establishes the right 
of all United States citizens to equal treat¬ 
ment by the States, despite their race or 
color. 

I have reserved the most important to the 
last. This is the tenth. “The powers not 
delegated to the United States by the Con¬ 
stitution, nor prohibited by it to the States, 
are reserved to the States respectively or to 
the people.” This is the great area of “ Y,” 
we have left white—virgin still, with the 
people. And this is the only part of the 
Constitution covering infinite, indefinite, po¬ 
litical power—the rights, powers and liber- 
197 


THE AMERICAN CONSTITUTION 


ties reserved to the people and to their 
home governments. 

It will be seen from this brief survey 
that I was justified in saying at the begin¬ 
ning that the Constitution, in so far as it 
affected the Federal Government, consisted 
mainly of restrictions; while comparatively 
few restrictions are imposed upon the States 
—the general theory being that they have 
all legislative powers of ordinary republics. 

And let us also see what things are for¬ 
bidden to both States and Nation—“XZ”— 
as this is most significant; moreover, such 
matters, though the Constitution does not 
expressly say so, must fall, with their ex¬ 
pressly reserved liberties, in the people’s 
domain, “Y.” Mainly these consist in the 
cardinal liberty rights—life, liberty, prop¬ 
erty, free religion (Amendments 5, 13, 14), 
etc., also the prohibition of titles of nobility, 
of bills of attainder, and the insistence on 
a republican form of government by both 
the Nation and the State, elections of the 
House by the people (I, 2), the assurance 
of equal rights by law (Amendments 5 and 

14) , and the right to vote (Amendment 

15 ) . 


DIVISION OF POWERS 


We now come to our zone of “B”— 
States’ Rights. Very few things have to be 
given expressly to the States, because the 
general theory is that they have all powers 
not expressly parted with. They are ex¬ 
pressly given control over their militia. 
They are given power to demand extradition 
of criminals from other States; they are 
guaranteed their territorial integrity; they 
are protected against law-suits. 

Then, in the division “ BX,” given to the 
States and forbidden to the Nation, we have 
the Constitution’s own definition of States’ 
Rights; the States are expressly, by the 
Tenth Amendment, given all powers not 
expressly delegated to the Federal Govern¬ 
ment in the Constitution. This is the great 
right reserved, and has been fully discussed 
already—that there is nothing in the whole 
body of political power which does not be¬ 
long to States’ Rights unless it is expressly 
delegated to the Federal Government in the 
Constitution itself. This provision is so 
broad that it is hardly necessary for the 
Constitution to say more. It does, how¬ 
ever, expressly give a few things to the 
States and forbids them to the Nation. For 


199 


THE AMERICAN CONSTITUTION 


instance (I, 2), the right to elect members 
of the House of Representatives by the 
people of the States and to have a number 
of representatives proportionate to their 
population; the right of State Governments 
to issue writs for elections to fill vacancies; 
(Art. I, Sec. 3) the right to have two Senators 
from each State chosen by the Legislature 
thereof, each senator to have one vote; and 
in the next clause the right of the Governor 
to appoint senators to fill vacancies; (Art. 
I, Sec. 4) the right to manage, control and 
fix the times and places of their own elec¬ 
tions, even for United States Senators; (I, 
8, 16) the right to appoint the officers of their 
own militia; (II, 1, 2) the right to appoint 
electors for the United States President 
even, in such manner as the State Legis¬ 
lature direct, not to be controlled by the 
Federal Government. They can be ap¬ 
pointed, either by election throughout the 
State as a whole, or by election in districts, 
or even directly by the State Legislature it 
would seem, though the last has never been 
done. But Michigan and other States have 
had elections by districts. 

The chief matter which is common to 


200 


DIVISION OF POWER 


both the State and Nation (“AB”) is that 
of taxation, jurisdiction of ordinary law¬ 
suits, and the forming of new States. States 
and Nation (IV, 4) may combine to repress 
domestic violence. They have to combine 
to amend the Constitution (Art. V), and 
(IV, 3, 1) to alter State boundaries. Other¬ 
wise there is no overlapping, and, despite 
the President’s opinion, no gaps—save the 
great gap of imperial power and personal 
liberty reserved in the people. 

For, finally, after we have divided all these 
powers in these eight divisions, we have in 
the centre that space unoccupied which 
perfectly represents those powers which re¬ 
main in the people, which they have never 
granted to our Federal Government, or 
even, in many cases, to the States; rights 
still virgin. This great domain I have al¬ 
ready anticipated. Indeed it was the sub¬ 
ject of most of our early lectures: liberty, 
property, equality, the right to law, habeas 
corpus, trial by jury, local self-government, 
popular election, general suffrage. All these 
fundamental things would fall into that 
division. To say more here would be to 
repeat the first five lectures. 


201 


THE AMERICAN CONSTITUTION 


But there are other, more political, 
rights given to protect the people. Con¬ 
gress must assemble every year; it must 
have freedom of speech and guaranty against 
arrest; the House alone can introduce rev¬ 
enue bills. No armies can be maintained 
for more than two years. No direct taxa¬ 
tion from the National Government; no un¬ 
equal indirect taxation from the National 
Government. No titles of nobility. Jury 
trials; indictments; civil rights; the for¬ 
bidding of all class legislation; the suprem¬ 
acy of the Constitution. And, finally, after 
all these rights have been enumerated, the 
great Ninth Amendment says that this enu¬ 
meration, nevertheless, does not deny or 
disparage other rights still retained by the 
people; the final and important thing being 
that the framers founding this Government 
consciously and expressly did not intend to 
give general sovereign powers of conquest 
or National career. Their Government was, 
in theory, a committee, bound to report to 
its masters every two years. This whole 
sphere in our diagram represents, in a sense, 
infinity of powers; but the real infinity is in 
the central sphere of “Y.” All the other 


202 


DIVISION OF POWER 


divisions are definitely limited and definitely 
controlled. Failure to understand this is 
failure to understand the cardinal principle 
of our Constitution. 


20? 


CHANGES IN THE CONSTITUTION NOW 
PROPOSED 


E have but two remaining lectures in 



V V which to fulfil our promise of con¬ 
sidering those subjects of the American Con¬ 
stitution which are likely to bulk most 
largely in the popular mind in the imme¬ 
diate future. First, we will take the regula¬ 
tion or control of corporations. By an acci¬ 
dent of legislation or policy, the Act estab¬ 
lishing the Department of Commerce and 
Labor authorizes the Commissioner to make 
investigations ... of the business of any 
(not every or all ) corporation engaged in 
interstate commerce; and by an Act of 
February 25, 1903, $500,000 was appro¬ 
priated to enable the Attorney-General to 
conduct prosecutions under the same. Now 
the question of compulsory evidence, pub¬ 
licity of business corporations, and the im¬ 
munity of those testifying in such matters, 


CHANGES IN THE CONSTITUTION 


is one thing; the right of a man to keep his 
private affairs private, to have his private 
papers sacred, and his house and posses¬ 
sions inviolable, is quite another, a valued 
liberty right, won in comparatively modern 
times against the Stuart tyranny. Indeed 
one of these rights—that a man’s house and 
papers should not be searched without a 
special warrant stating the cause—was, we 
may say, invented in Massachusetts. The 
Writs of Assistance, which allowed general 
perquisition, were a great abuse at the time 
that General Gage was stationed in Boston. 
In an impassioned speech, James Otis ob¬ 
jected to them, asserting that they were 
against English constitutional principles. 
He won his case; and the same thing was 
afterwards decided in England by Lord 
Camden. The broader principle, much 
older, that a man should not be compelled 
to testify against himself, is a very corner¬ 
stone of English liberty. It is far too pre¬ 
cious to part with, but it has undoubtedly 
been much abused by the trust magnates 
and other powerful persons who were en¬ 
deavoring to evade our Federal laws. Now 
we had several Acts of Congress which re- 
205 


THE AMERICAN CONSTITUTION 


quired trusts and their officers, at the re¬ 
quest of the Commissioner of Corporations, 
to make reports to the Government and 
show their books. They hastened to do so 
when required. It necessarily resulted from 
the fact that they acted under Government 
compulsion, that they were immune from 
prosecution for anything revealed by the 
books and documents delivered. This re¬ 
sult was doubtless a great disappointment 
to the President and a great miscarriage of 
justice. Nevertheless, it might easily have 
been avoided by drawing the statute or 
conducting the prosecution so as to require 
only the secretary or other subordinate 
officer having possession of the books to 
produce them, thus leaving the real heads 
of the objectionable trusts open to prosecu¬ 
tion. There can be little question that 
Judge Humphrey’s decision on this point 
was perfectly right. 

As a result of this Beef Trust decision, how¬ 
ever, Attorney-General Moody promptly in¬ 
troduced a bill into Congress giving the Gov¬ 
ernment the right to appeal on a ruling of 
law in criminal cases, and this brings us 
naturally to the next thing I want to discuss, 
206 


CHANGES IN THE CONSTITUTION 


the right of not being “ twice in jeopardy.” 
We have seen that one of our constitutional 
liberties is expressed by these words, that 
no man shall be twice put in jeopardy of his 
life or liberty for the same offence. That is 
to say, he is not to be tried twice. From 
this early English principle grew, in many 
of our States, the notion that a man was 
tried twice when the Government had a 
right to appeal the case to a higher court. 
Now this really is a misconception of the 
constitutional principle. No man is twice 
in jeopardy unless he has been tried twice 
by a jury—the reason for this being that 
under Anglo-Saxon ideas no Judge, no King, 
but only twelve lawful men of the neighbor¬ 
hood can take a man’s life or liberty away; 
but when a man has been tried before a 
jury and acquitted on a ruling of law which 
was wrong, and it is possible that the jury 
would not have acquitted him had the ruling 
been otherwise, there is no reason why that 
ruling of law should not be reviewed. It 
would be better, probably, to have the case 
at once suspended when the ruling of law is 
excepted to, so that no jury is in fact brought 
in on the first trial. The bill drawn, I be- 
20 7 


THE AMERICAN CONSTITUTION 


lieve, by Mr. Moody was promptly (March 
2, 1907) enacted, and is simply in line with 
the rule that prevails in about half our 
States. There is nothing radical or revolu¬ 
tionary in this, and in the future the Govern¬ 
ment will have the right to appeal from any 
ruling of law that it is not satisfied with. 
Indeed, I only wish this Act had been in 
force at the time that Judge Humphrey 
made his celebrated decision in the Beef 
Trust case. It might have saved a member 
of the judicial branch a severe written cen¬ 
sure addressed by the Chief Executive to 
the House of Congress, for which we can 
hardly go back for a precedent to the time 
when Andrew Jackson said of Chief-Jus- 
tice Marshall’s decision against the State of 
Georgia: “Well, John Marshall has made 
that decision—Now let John Marshall en¬ 
force it.” 

The next thing in the Constitution that is 
a great issue to-day is Art. I, Sec. 3, requir¬ 
ing the Senate to be chosen by the Legisla¬ 
ture of each State. Nearly every State in 
the Union, and both parties in more than 
one, have adopted resolutions for an amend¬ 
ment of this part of the Constitution, re- 
208 


CHANGES IN THE CONSTITUTION 


quiring Senators to be elected by popular 
vote. This stands in the National platform 
of the Democratic party, and even in the 
platform of the Republican party in several 
States; but if the people really desire it, it 
is not necessary to amend the Constitution 
to effect this reform. All they have to do 
is to provide for an expression of popular 
preference at the polls, just as they do now 
when electing a President. As you know, 
we do not elect Presidents directly; we only 
vote for the electors, but those electors are 
pledged to a certain presidential candidate. 
In the same way it is perfectly easy to pro¬ 
vide by State statute that the people may 
be allowed to express their preference for 
United States Senator at the polls, and then 
the legislature which they elect will hardly 
dare go against their expressed will. Sub¬ 
stantially this system has been adopted in 
Oklahoma, in Wisconsin, I think, and in 
several other States, and if the parties are 
really in earnest about it they can do it in 
Massachusetts next winter. 

Our third point of discussion is Art. I, 
Sec. 5: each House shall be the judge of 
the election, returns, and qualifications of its 
209 


THE AMERICAN CONSTITUTION 


own members. Under that section, mem¬ 
bers of Congress are, as you know, fre¬ 
quently unseated, though they have an ap¬ 
parent popular majority; especially when 
they belong to the minority party at Wash¬ 
ington. Senator Smoot of Utah was very 
nearly turned out of the Senate, not for lack 
of votes, but for lack of moral qualifications 
for a seat in that fastidious body; the oppo¬ 
site principle was vindicated in England 
more than one hundred years ago in the 
famous Wilkes case. There is no doubt, 
however, that the power ought to lie in 
Congress, except in the case of a mere ques¬ 
tion of numbers of votes, when it might 
fairly be referred to the Courts. Such has 
been the history of this matter in England. 
The power of the House of Commons to 
judge of its own elections, returns, and quali¬ 
fications was early vindicated as against the 
Crown, but in modern times they have of 
their own will adopted a judicial procedure. 

Art. I, Sec. 7, that bills for raising revenue 
shall originate in the House, I have spoken 
of elsewhere. This provision of the Con¬ 
stitution should be observed in spirit as well 
as in letter. Art. I, Sec. 9, Clause 4—the 


210 


CHANGES IN THE CONSTITUTION 


Democratic party is apparently committed 
to an amendment of this section so that 
Congress shall be allowed to impose direct 
taxes, or at least income taxes, which the 
Supreme Court has recently held to be 
direct within the meaning of the Constitu¬ 
tion. This is a matter of which the people 
should judge. There was a fear in early 
times that the poor States might tax the rich 
States if this clause of the Constitution were 
not put in. If that fear has departed, the 
Constitution should be so amended. I 
doubt, however, whether such an amend¬ 
ment would be agreed to by three-fourths 
of the States. Under present tendencies, 
that very fact is argued to be a reason for 
straining or stretching the Constitution with¬ 
out amending it; but such a notion, though 
held by individuals, has not yet formally 
been adopted by either of the great political 
parties. Then of the proposal to tax out of 
existence, either by income or succession 
tax, “ swollen fortunes.” This brings up 
again the great question which lies before 
us. Is it the function or province of the 
Federal Government to step between the 
individual and his property, to regulate the 


211 


THE AMERICAN CONSTITUTION 


private affairs of all men in that most im¬ 
portant part of them which concerns their 
fortunes ? There can be no question but 
that every member of the Constitutional 
Convention of 1787, not excepting the cele¬ 
brated Judge Wilson, recently resurrected 
by the President, would have earnestly an¬ 
swered in the negative. Not the wildest 
Federalist ever dreamed of putting in the 
power of the Federal Government the con¬ 
trol of his domestic affairs. The Federal 
Government has not, except at sea or in the 
army, that cardinal power of a Sovereign 
Government—to inflict the death penalty 
for crimes, other than treason. All that 
even Hamilton aimed at was to make the 
National Government strong, supported and 
authoritative at home, and respected abroad. 
But he, as much as Thomas Jefferson, un¬ 
derstood that it was to be purely political. 
The Government has power to raise revenue 
for the National defence and the general wel¬ 
fare, and an inheritance tax imposed for 
that purpose has been held constitutional 
by the Supreme Court; but a tax which on 
its face was aimed not at raising necessary 
revenue but at diminishing or destroying 


212 


CHANGES IN THE CONSTITUTION 


large private fortunes would be unconstitu¬ 
tional, and for this statement I have very 
high authority. If, under the Interstate 
Commerce clause, the Federal Government 
is to control, not only commerce itself, but 
the persons who conduct it and the fortunes 
which are in part derived from it, it may 
as well control the marriages of the parties 
thereby enriched and the legacies they may 
leave to their children. There is no bound or 
limit to this path short of absolute control by 
Congress of the people and all their domes¬ 
tic affairs. The fact must never be lost 
sight of that the framers of the Constitution, 
as clearly as the English language could ex¬ 
press it, sought to deny to the Federal Gov¬ 
ernment any power of direct taxation of the 
people. It is almost by a fiction of law, by 
what was at the time regarded as a dubi¬ 
ous decision of the Supreme Courts of 
Massachusetts and the United States that 
a tax on inheritances was held not to be 
a direct tax. The law now so stands; but 
the spirit of the Constitution is against it. 

Art. I, Sec. 8, Clause 3 (to regulate com¬ 
merce among the several States), and Art. 
I, Sec. 9, Clause 6 (no preference shall be 
213 


THE AMERICAN CONSTITUTION 


given by any regulation of commerce to 
the ports of one State). The great railway 
regulation bill, secured by the President last 
year, has been in effect too short a time yet 
for us to judge of its results. As to its con¬ 
stitutionality, it is still argued that it has 
two or three fatal defects. First, that it is 
a delegation of legislative power to an ad¬ 
ministrative board, and, as such, uncon¬ 
stitutional, or else that it clothes an admin¬ 
istrative board with judicial power, which 
is equally so; second, that it takes away a 
man’s property or the property of railroad 
corporations without due process of law. 
This is probably cured by the broad court 
review provision which was inserted by 
Senators Knox and Foraker against the 
opinion of the Administration. Third, pos¬ 
sibly, that it is in effect a preference given 
by a regulation of commerce to the ports of 
one State over those of another. But on 
the broad principle whether the Constitu¬ 
tion in the Interstate Commerce clause con¬ 
templates any such power, a word or two is 
necessary. We have sufficiently pointed 
out that the intent of the Constitution is to 
make commerce among the States free and 
214 


CHANGES IN THE CONSTITUTION 

unhampered by anybody. If the words 
they have chosen have nullified such intent, 
it is at least to be noted that the conclusion 
will carry us very far. Not only under it may 
they as well regulate charges, and hence prob¬ 
ably the profits, to be derived from commerce 
with the Indian tribes, but there would seem 
no reason to say that they may not do the 
same as to commerce with foreign nations; 
and, although we think of the railway rate 
regulation law as applying only to corpora¬ 
tions, we are by no means limited to that 
conclusion if the foundation of the present 
law is valid, for it rests not on the power to 
regulate corporations—at present the Fed¬ 
eral Government has none—but on the 
power to regulate commerce among the sev¬ 
eral States. It can regulate that commerce 
quite as well when done by individuals as 
when done by corporations. Therefore, if 
the principle of the Hepburn Act is valid, 
all the charges and profits made by individ¬ 
uals engaged in any interstate commerce 
may be delimitated, regulated or controlled 
by Congress. Not only that, but the form 
and law of the bills of exchange and the 
bills of lading whereby such commerce is 
215 


THE AMERICAN CONSTITUTION 

carried on—this, indeed, possibly would not 
be denied—but the interest to be charged 
upon such bills of exchange as well. And 
when we apply this principle to commerce 
with foreign nations (and the power must 
apply to one if it applies to the other) we are 
met with the tremendous consequence that 
Congress may prescribe all freight or pas¬ 
senger rates of vessels doing business with 
foreign ports, the laws and conditions under 
which they shall do such business, and, 
though it cannot indeed enforce such laws 
directly, it may lay an embargo on all such 
commerce when the laws are not observed. 
Then as to the goods themselves, which 
may be a proper subject of interstate com¬ 
merce. It is now proposed to exclude goods 
which are not manufactured or produced in 
conformity with a national labor law; but 
the most radical abolitionist in the times 
before the Civil War never proposed to 
destroy the institution of slavery by exclud¬ 
ing the cotton or sugar or rice grown in 
whole or in part by slave labor from any 
transportation across State lines. Charles 
Sumner and other abolitionist lawyers were 
dull and uninventive. It is too bad that it 
216 


CHANGES IN THE CONSTITUTION 


was so, because otherwise the Civil War 
might have been avoided. 

Then as to the economic side of the ques¬ 
tion. It is argued that it will make rates in¬ 
elastic, will arrest the growth of business, 
and will give a preference to certain ports 
or certain sections contrary to this provision 
of the Constitution. It is too early, in my 
opinion, to judge of any of these things. I 
will, however, mention one significant event, 
while reminding you of what I said of the 
evil effects of interposing boards or commis¬ 
sions between the people and their common- 
law rights. The first decision under the 
railway rate regulation bill was one arising 
from the State of Texas, where certain Texas 
merchants brought suit in the State Courts 
under the very strict railroad law of Texas, 
claiming discrimination in the rates charged 
to the Standard Oil Company as against 
other companies, and also, I think, extor¬ 
tion in the rates for cotton. The complain¬ 
ing merchants won their case in the State of 
Texas; but it was removed from the highest 
court of Texas to the United States Su¬ 
preme Court, which reversed the Texas de¬ 
cision on the ground that the railroads 
217 


THE AMERICAN CONSTITUTION 


having filed schedules under the national 
railway rate regulation bill, the courts of 
Texas were powerless, the laws of Texas 
ceased to apply, and the people of Texas 
could no longer enforce their own law reme¬ 
dies, or even the common law. All control 
of commerce was taken from “A” and 
placed in “AZ.” Whatever the extortion or 
discrimination, they must wait until they 
could get a ruling from the Interstate Com¬ 
merce Commission, with ultimate appeal 
only to the Supreme Court at Washington. 
And in the long run such rulings will neces¬ 
sarily tend to a uniform mileage rate, not 
lower than the poorer railroads can afford. 
The Hepburn law will be, in my opinion, 
a very good thing for the railroads but will 
disappoint the expectations of the people 
and prove an obstacle to the settlement of 
new localities or the founding of new in¬ 
dustries. 

This naturally brings us to almost the 
greatest principle of all, that we are in dan¬ 
ger of forgetting—the importance of careful 
division of the powers. The two rocks 
ahead of us, in my opinion, are that the 
people may come to forget the importance 
218 


CHANGES IN THE CONSTITUTION 


of separating the Executive from the Legisla¬ 
tive, and that they may come to forget the 
importance of separating those powers which 
belong to the Nation from those which re¬ 
main with the States or even are reserved 
to the people. “ Render unto Caesar those 
things that are Caesar’s.” This railway rate 
regulation bill is the first tremendous exam¬ 
ple of it, perhaps,in National affairs; though 
before that there was the old Interstate Com¬ 
merce Commission, and there is the Bureau 
of Corporations. I shall say something of 
the latter later. But in the States, as you 
know, there has been a tremendous duplica¬ 
tion of Boards and Commissions and Com¬ 
mittees, all charged with matters of legisla¬ 
tion which should belong to the Legislature, 
or with matters of judgment or administra¬ 
tion which should belong to the Courts, or 
to the ordinary servants of the people. 
Nearly all these Boards are in effect law¬ 
makers, judges and juries in their own 
affairs; and though there is sometimes in 
theory an appeal from them to the courts, 
it is almost impossible for an ordinary man 
who has a grievance to get beyond the 
Board or Commission if it decide against 
219 


THE AMERICAN CONSTITUTION 


him. I am not saying that they do not do 
some good work, but I say the principle is 
bad, and should be watched carefully. The 
constitutional rights of a man almost disap¬ 
pear before such a Board or Commission; 
as they do before a military court in the 
Army, or indeed before any administrative 
officer clothed with unchecked power. 

Coming from the question of division of 
powers to that of so-called usurpation, 
though the word aggrandizement would 
perhaps more fairly express it, we have 
noted that that most feared by Thomas 
Jefferson, usurpation by the judicial branch 
of Government, has not proved a serious 
danger; but each of the other branches, as 
well as each branch of Congress, has shown 
a tendency, and is now showing a tendency, 
to exaggerate its powers at the expense of 
constitutional principles. The interference 
by the Senate with treaties has already been 
discussed, as well as the way that it has 
taken unto itself the shaping of measures 
of revenue or taxation. So, also, its misin¬ 
terpretation of its right of confirming Presi¬ 
dential appointments. But the House is by 
no means guiltless in this last matter. It 


220 


CHANGES IN THE CONSTITUTION 


has grown to be the custom, so that it has 
recently been claimed by a Massachusetts 
Congressman to be the unwritten law, that 
a large number of Federal officers are in 
effect to be appointed by members of Con¬ 
gress. Art. II, Sec. 2 of the Constitu¬ 
tion says only that “the President shall 
nominate and by and with the advice and 
consent of the Senate . . . shall appoint 
... all other officers of the United States 
whose appointments are not herein other¬ 
wise provided for.” They are to be con¬ 
firmed by the Senate; but it is clear that 
the Constitution intends that members of 
the Lower House shall have nothing to do 
with the matter; and the enlightened view 
of the situation would lead Congressmen 
to desire this themselves. They gain noth¬ 
ing from the present custom, not even in 
political power; while they incur the danger 
of making many enemies, and the loss to the 
American people of a large part of their 
valuable time. 

The aggrandizement of the Executive 
power is one that we have traced so care¬ 
fully through English history and spoken 
of so often in earlier lectures that there 


221 


THE AMERICAN CONSTITUTION 


seems to be now but a word or two to add. 
The notion that the President should not 
endeavor to impose his policies on Congress 
prevails now very largely with that body. 
Indeed, you will remember what Speaker 
Onslow said to the effect that a rumor run¬ 
neth about the House, take care what ye 
do with this bill; it liketh not the King. 
Take care what ye do as to that other. It 
pleaseth the King’s Majesty; and he con¬ 
signed such notions to be buried in Hell— 
in the emphatic language of that day; but 
Section 3 of the Article of our Constitution 
concerning the President’s duties says that 
“ He shall from time to time give to the Con¬ 
gress information of the state of the Union 
and recommend to their consideration such 
measures as he shall judge necessary and 
expedient.” Our President is, therefore, 
quite within his constitutional rights in so 
doing, though it is the last thing that would 
now be attempted by the British King. 

The only express change in the Constitu¬ 
tion now seriously proposed is that for the 
repeal of the Fifteenth, and possibly even 
the Fourteenth, Amendment. The Fif¬ 
teenth Amendment, you remember, is the 


222 


CHANGES IN THE CONSTITUTION 


one which gave the negroes the right to 
vote. The Fourteenth Amendment is one 
which was aimed at giving the negroes civil 
rights; and also at guaranteeing certain 
cardinal rights to all United States citizens, 
even against the laws of the States. It was, 
therefore, the first direct interference of the 
Federal Government with the condition of 
the people, their property and civic rights. 
In a sense, therefore, this is an anti-States’ 
Rights measure. In fact the last three 
amendments are all somewhat of this na¬ 
ture; which shows that it is not true that, if 
the people really desire an amendment in¬ 
creasing the Federal power and taking away 
rights which before that belonged to the 
States, there is any difficulty in doing so. 
It has been done no less than three times in 
the last forty years. This reactionary pro¬ 
posal, however, seems to have been lost 
sight of in the last year or two; whether or 
not it is “ practical politics,” I personally 
can see no reason for the repeal of either 
amendment. 

Last of all, we come to the one now most 
discussed. Interstate Commerce—how far 
do the powers of the Federal Government 
223 


THE AMERICAN CONSTITUTION 


extend ? Labor, health, marriage, divorce 
—should the Federal power be extended 
also to these fields ? To this question and 
the regulation of corporations generally, we 
shall devote our last lecture. 

We may, however, dispose of labor laws, 
marriage laws and the like in a few words. 
There is no general desire on the part of the 
States for uniform, still less Federal, laws in 
these important social and domestic affairs. 
For fifteen years the writer served as Com¬ 
missioner for Massachusetts upon National 
Uniformity of Law, meeting each year simi¬ 
lar commissions appointed under the laws 
of nearly all the other States. There is no 
general desire for enforced uniformity on 
these subjects throughout the Union. Cli¬ 
mate, conditions, races, religions vary too 
widely in our great country. The National 
Conference of State Uniformity Commis¬ 
sions had little trouble in getting its uniform 
law on Bills and Notes adopted throughout 
the Union; it has made no progress in labor 
or marriage legislation except the doing 
away with the “common law” marriage in 
New York and a certain reform in divorce 
procedure. The causes lie too deep. In 
224 


CHANGES IN THE CONSTITUTION 


1895 Massachusetts instructed her Com¬ 
missioners to bring before the National Con¬ 
ference the question of uniform hours-of- 
labor laws. The conference that year was 
at Detroit, and the writer, acting as chair¬ 
man, had the request of the legislature of 
Massachusetts introduced from the floor. 
Before the reading was half over, two-thirds 
of the delegates were up in angry disap¬ 
proval; a rebuff to our State was only 
avoided by having the matter smothered in 
committee. 

Uniformity is hopeless on these points— 
nor is it wise. The Southern marriage laws 
are aimed to protect the young girl against 
dishonor; the Northern follow rather the 
European view of protecting the man, or the 
legitimate wife, against the adventuress. 
Half the States think a marriage a mere 
contract; others hold to the view that it is a 
status, or a sacrament of the church. In 
labor legislation there is even less desire for 
national laws. What little there is is fos¬ 
tered partly by the labor unions, but mainly 
by Northern manufacturers. In my ex¬ 
perience you will not get six States to vote 
for a uniform law on causes for divorce, nor 
225 


THE AMERICAN CONSTITUTION 


six for a nine-hour day in factories. But if 
they will not do it by voluntary legislation 
of their own, how absurd to suppose they 
will accept Federal compulsion by a con¬ 
stitutional amendment—or submit to the 
strained construction whereby the President 
urges those powers “must be found”! 


226 


VIII 


INTERSTATE COMMERCE, THE CONTROL 
OF TRUSTS, AND THE REGULATION 
OF CORPORATIONS 



HE right to “regulate commerce 


A among the States”; these five words 
have given rise to more doubt among states¬ 
men, and to more construction by the 
Courts, than any other phrase in the Con¬ 
stitution. You will note that this power 
is placed third in the line of the eighteen 
paragraphs of powers granted to Congress. 
This fact can hardly indicate its relative im¬ 
portance, as although they put the power 
to tax and the power to borrow money ahead 
of it, yet they put the power to raise armies 
and declare war much lower down. Now, 
the opinion of what this paragraph in the 
Constitution means ranges all the way from 
those who say that it simply means that 
the States may not regulate such commerce, 
and does not imply that the Nation may, in 


THE AMERICAN CONSTITUTION 


any broad sense, but only gives it the neces¬ 
sary local control over the physical instru¬ 
mentalities of commerce, which, in those 
days, were only vessels or stage coaches, and 
over the actual goods transported while in 
process of transit; this is the old strict con¬ 
struction view, and undoubtedly our fathers 
started with this; and they also probably 
thought that the States could make regula¬ 
tions concerning interstate commerce so 
long as they did not come into conflict with 
any law of the United States; to, from that 
extreme, the radical view of some statesmen 
to-day who say that under these five words 
not only has Congress the power to regu¬ 
late, but the power to forbid or to tax inter¬ 
state commerce; that the word “ commerce ” 
includes not only goods in transit but all 
articles, crops, or manufactures which may 
ultimately become the subject of such com¬ 
merce; and all instrumentalities of such 
commerce, physical or documentary; that 
the right to regulate further includes not 
only the regulation of the goods or articles, 
but of the persons who conduct the com¬ 
merce and hence of their charges or even their 
profits; and this last, of course, leads to 
228 


INTERSTATE COMMERCE 


the regulation of the corporations who do 
so, if it be conducted by a corporation, as 
in most cases it is. You can see that such a 
broad construction of the power will really 
put the control of all the people’s commer¬ 
cial affairs in the hands of Congress or the 
Federal Government, except only such nar¬ 
row matters and such articles of limited use 
or transport as are both made, moved and 
finally consumed within the lines of one 
State; and under the interpretation pro¬ 
posed it would even apply to them if they 
were in fact made, grown or sold by a cor¬ 
poration doing business in more than one 
State. Take, for instance, a man who has 
a cranberry bog down near Fall River, and 
a neighbor who has an adjoining cranberry 
bog in the neighboring State of Rhode Isl¬ 
and. If they form a company and put the 
two bogs together, they become, under this 
interpretation, subject at once to the con¬ 
trol of Congress and no longer under the 
laws either of Massachusetts or Rhode 
Island. 

I do not know that I have convinced you 
that such centralization would be tremen¬ 
dous, but if I have not, I can only hope that 
229 


THE AMERICAN CONSTITUTION 


you will think it over. Time forbids my 
giving all the instances that I think would 
lead you to see what I mean. The great 
bulk of commerce is or may be interstate; 
and this interpretation of the Constitution 
would not only take the control of the prop¬ 
erty away from the citizens under their 
State laws but would deprive them of their 
State laws in forming corporations, or pos¬ 
sibly even partnerships; would make it 
necessary for them to conduct their litiga¬ 
tion in the Federal Courts; would deprive 
the States of police powers and the local 
courts of jurisdiction; and finally deprive 
the States, and probably even the towns or 
the counties where they are situated, of the 
power to tax them. 

You remember there was one great centrali¬ 
zation move attempted under the Fourteenth 
Amendment. The first section says that no 
State shall deprive any person of life, liberty 
or property without due process of law, nor 
deny to any person the equal protection of 
the laws. Under the theory of the radical 
republicans, at that time the old Abolition¬ 
ist party, this gave the Federal Government 
the right to step in whenever any negro 
230 


INTERSTATE COMMERCE 

claimed that he was not being treated fairly 
in any business, or that he was deprived by 
anybody or any person of any civil rights. 
This interpretation put all the domestic 
and social rights, the moment any claim of 
race distinction was involved, in the hands 
of the Federal Government; enabled it not 
only to interfere with State courts or laws, 
but to make acts of Congress of their own 
which should bear directly upon the citizen 
in his domestic, social, or local affairs. Such 
laws were, in fact, passed, and such inter¬ 
ference was, in fact, made by the Federal 
officers and courts. Now this, you can see, 
would have been a process of centralization 
very great—though probably, I think, not 
greater, at least as far as commercial affairs 
or rights of property are concerned, than 
were we to adopt this extreme interpreta¬ 
tion of interstate commerce. That attempt 
by the predominant party under the Four¬ 
teenth Amendment, was precisely as if the 
Norman kings, after the Conquest, had said 
that any case, or proceeding, or crime in 
which any Norman was concerned, or in 
which there was any claim of force by his 
Saxon neighbors, or indeed any matter 
231 


THE AMERICAN CONSTITUTION 


which concerned the two races, should at 
once be taken away from the local English 
courts and brought to the King’s Court 
which he held in person at Westminster, and 
furthermore, that the local laws should no 
longer apply to the Normans and Saxons, 
but that in any case where the rights of 
both were involved the King of France and 
England, of the empire, should be allowed 
to make laws without the consent of the 
local English Parliament. What was the 
result ? Well, the result with us after the 
Civil War was precisely what it was in 
England after the Conquest—only that we 
re-asserted local liberties much more speed¬ 
ily by reason of the fact that we had a Su¬ 
preme Court constructed for just such cases. 
It took the Federal Supreme Court just 
about twenty years to destroy this attempted 
centralization—to say that no powers were 
taken from the States and no liberties from 
the people, by the Fourteenth Amendment, 
only that some were additionally guaranteed, 
and that all that it meant was that the States 
could not make any law which, on the face 
of the law , appeared to go against these 
cardinal English liberty rights. In other 
232 


INTERSTATE COMMERCE 


words, the grand effect was simply to re¬ 
affirm the cardinal principles of Magna 
Charta as guaranteed as well by the National 
power against the action of the States as 
against its own action—making a double 
safety-lock, as it were, of these cardinal 
rights through both the Federal and the 
State Constitution, precisely what they had 
previously done in the case of bills of at¬ 
tainder—but giving no new power to the 
Federal Government over the people of the 
States. 

There are certain rights, you will remem¬ 
ber, which come under our “XZ” sub¬ 
division, which are guaranteed both by the 
States and by the Nation in the Federal 
Constitution, certain liberties protected from 
the action of both, and the only effect of the 
Fourteenth Amendment here was to add 
life, liberty and property, and the equal law 
clause of Magna Charta, to the others; and 
I do not think I am inaccurate when I say, 
at all events it is broadly true, that every 
attempt by Congress under the Fourteenth 
Amendment to make laws applying directly 
to the people of the States—in other words, 
every attempt to assume new powers of cen- 
233 


THE AMERICAN CONSTITUTION 


tralization under the Fourteenth Amend¬ 
ment not previously granted in the Con¬ 
stitution—was sooner or later declared null 
and void by the Supreme Court of the 
United States. And this may yet be the 
case with the attempted National control 
over corporations and industries generally. 

How, then, are we to cure the evils of 
trusts ? For, as you doubtless know, this 
whole talk of the interstate commerce clause 
of the Constitution has arisen solely by 
reason of our desire to regulate and control 
trusts—the evils of great corporations, tend¬ 
ing to monopoly, or not to-day properly 
regulated by the laws of the States which 
created them. Even the railways, had they 
remained in their State lines, would prob¬ 
ably never have discovered that they were 
subject to a National Commission. 

President Roosevelt was the first of our 
statesmen clearly to express this difficulty. 
In words that have become historical he 
pointed out at the very beginning of his ad¬ 
ministration that the trouble with these 
trusts, that is to say, these huge corpora¬ 
tions chartered by individual States (for 
such they had now all become), was that 
234 


INTERSTATE COMMERCE 

they were in practice amenable to no sov¬ 
ereign. That was exactly the truth; and 
that is still the difficulty. Corporations are 
artificial bodies. It is only by a fiction of 
the law that we have grown to give them 
any powers at all. It is only by an accident 
of our National organization that we have 
permitted them to act in more than one 
State. A corporation of New Jersey might 
just as well have been prohibited at the 
start from acting in the State of Georgia or 
Massachusetts, as have been allowed so to 
do. I can only say here that the accident 
of the law’s development worked that way. 
Broadly speaking, this right does not exist 
as between different nations; but owing to 
the desire of our States to be friendly to 
each other, and the full faith and credit 
clause, so-called, and other implications in 
the Constitution, our courts early formulated 
a doctrine of “ comity,” which you might 
translate as courtesy—under which the cor¬ 
porations of one State were allowed to come 
into another State and do business. And 
not only this, but they came in not only with 
the powers which that State chose to permit 
to its own corporations , but with all the im- 
235 


THE AMERICAN CONSTITUTION 


possible or wrongful powers that might have 
been granted to it in the State , New Jersey 
or West Virginia , which gave it its charter. 
Unfortunately, this business had proved 
profitable to the States having lax laws. 
New Jersey is said to run her State Govern¬ 
ment entirely on the license fees of corpora¬ 
tions, most of which do business elsewhere; 
and many of the States have got to be mere 
breeding-nests for these predatory corpora¬ 
tions; once hatched in the State, New Jer¬ 
sey or Maine or Delaware, and having paid 
their birth tax, as it were, the parent State 
took little further interest in them. Like 
birds of prey, they leave the mother-perch 
to violate the laws or monopolize the busi¬ 
ness of other States. And they are never 
controlled, or warned back, still less “called 
down,” by the State which created them. 
The President pointed out in early messages 
that some such corporations were actually 
chartered expressly for the purpose of 
breaking or evading the laws of other States. 
He put in action all the laws of Congress 
and all the energies of his department, and, 
as a result, pressed to a victory for the 
Government the great Northern Securities 
236 


INTERSTATE COMMERCE 


case, to the probable surprise of most of the 
offenders. In this case the Supreme Court, 
though by a divided decision, established 
the principle for which the President was 
contending. That is to say, that under the 
Sherman Act—the anti-trust act which for¬ 
bids combinations of two or more persons 
or corporations to restrain trade among the 
States—a single corporation created under 
the laws of New Jersey for the purpose of 
holding two railroads and thus evading the 
national law, was, and remained, a device 
or conspiracy within the purview of that 
Act; was therefore forbidden by it; and 
could be dissolved at suit of the Federal 
Government. 

Here was a complete victory; and under 
this decision other victories have followed. 
There is no trouble, therefore, in restraining 
or breaking up combinations or corpora¬ 
tions organized to monopolize a trade or a 
business, when that trade is in its nature 
interstate commerce. Railroads which cross 
State lines obviously are interstate com¬ 
merce corporations. So far all right. 

But we did not exhaust the evil, though 
some almost thought we had exhausted the 
2 37 


THE AMERICAN CONSTITUTION 


powers of the Federal Government. Under 
the ordinary older view, only railroads and 
steamboat or other transportation com¬ 
panies were held to be interstate commerce 
corporations. In fact, our Supreme Court 
has decided that manufactures, however 
large, and although conducted by the same 
combination in many States, are not com¬ 
merce, still less interstate commerce. And 
nearly all the large trusts complained of by 
the people, which the President is trying to 
destroy or control, are in the nature of com¬ 
binations or consolidations of manufactur¬ 
ing corporations, or at least corporations 
which deal in commodities, manufacturing 
or trading companies. Does the mere fact 
that the corporation making them expects 
that ultimately the goods may be shipped 
into other States of the Union—or even in¬ 
tends so to ship them itself—does this alter 
the state of things ? Are they for that reason 
interstate commerce ? Our Supreme Court, 
in the famous Knight decision, held not. 
Are we then left without a remedy ? That 
is to say, under the bad laws of some States, 
obnoxious trusts, corporations with danger¬ 
ous powers were being created. When 
238 


INTERSTATE COMMERCE 


created they did business throughout the 
Union. Had the Federal Government no 
remedy ? Was there no remedy for this 
state of things, no possibility of a law by 
which the people could be protected against 
the injuries they suffered? 

Three remedies were laid down in the 
report of the Industrial Commission, and 
the one they recommended was the one 
which, at least for some years, the President 
seemed to prefer. These three remedies 
are, first, what is perhaps the ideal remedy, 
to have the States and the Nation work to¬ 
gether; that is to say, all the States volun¬ 
tarily of their own good sense adopt good 
corporation laws, if possible the same cor¬ 
poration law, so that the evils complained 
of will not exist. And by corporation laws, 
of course, I also mean laws aimed at what 
are called trusts, abuses in restraint of 
trade, monopoly, etc. This, as I say, 
would be the ideal remedy. But from the 
nature of the States, if not from human nat¬ 
ure, it seems too much to hope for in this 
world. Even if forty-five of the States saw 
the light and enacted an identical good law, 
it would be all the more profitable for the 
239 


THE AMERICAN CONSTITUTION 


forty-sixth State to charter these New Jer¬ 
sey corporations with full powers and let 
them fly away over the land, provided only 
that they paid an annual tax to the State of 
New Jersey. There is, however, one rem¬ 
edy, but it does not seem to have been men¬ 
tioned much in the discussion, certainly not 
by the President. A State really has full 
power to protect itself if it wishes to, except 
indeed, under the modern and radical view 
of the words “ interstate commerce.” That 
is to say, it is admitted that no State is 
obliged to permit the corporation of any 
other State to come within its borders and 
do business. If the State of Massachusetts 
complains of the Steel Trust, for instance, 
it has the entire constitutional right to ex¬ 
clude that corporation from the State mar¬ 
kets and stop all its business and affairs at 
the State line. And, moreover, it can pre¬ 
vent the same results indirectly attained by 
forbidding one corporation to own stock in 
another—this, indeed, was the good old 
common law. These, you see, would be 
perfectly effective remedies. There is noth¬ 
ing to prevent our telling the Standard Oil 
Company it cannot do business in the State 
240 


INTERSTATE COMMERCE 


of Massachusetts from to-morrow; there 
is nothing to prevent our forbidding the 
United States Steel Trust of New Jersey to 
own stock in the Washburn and Moen Com¬ 
pany of Worcester. Indeed, something like 
this has been done by the State of Texas. 
The remedy is drastic and complete. The 
only trouble is that it may be too complete. 
The reason it has not been adopted, in my 
opinion, is very simple—the intelligent radi¬ 
cals are not sincere, and the sincere radicals 
are not intelligent. Whatever be the reason, 
however, the fact is that this remedy has 
never been tried and still remains among 
the powers of the people of the States. 

The President’s remedy is Federal arroga- 
tion of the power by a strained construction 
of the Constitution. Now, it is always as¬ 
sumed by the radicals that this broad inter¬ 
pretation of the words “interstatecommerce” 
will be a good thing for the people and will 
strengthen their powers as against the great 
trusts and corporations. I believe the exact 
opposite to be the case. If the words “ in¬ 
terstate commerce” be stretched to include 
nearly all business corporations, the States 
and the people of the States will at once 
241 


THE AMERICAN CONSTITUTION 


become powerless. They will lose all their 
rights under their own laws. It has been 
decided by the Supreme Court—in the 
Pensacola Telegraph case, against the dis¬ 
sent of its greater judges—that the one ex¬ 
ception to the power of a State to forbid a 
corporation to do business within its limits 
is the case of an interstate commerce cor¬ 
poration. I hold that, like the rights of 
the Fourth and Fifth Amendments, the right 
to conduct interstate commerce is a per¬ 
sonal right, not guaranteed to corporations 
of other States. This case was originally 
decided only of a telegraph company ex¬ 
tending across State lines, but it has since 
been extended to railroads, and under the 
construction contended for, apparently by 
the Administration, it would cover all cor¬ 
porations doing business directly or in¬ 
directly in more than one State. We had 
an object lesson in this this year. The first 
effect of the much-lauded railway rate regu¬ 
lation bill has been to deprive the people of 
the States of all their common-law rights as 
to the charges of railroads and most of the 
State’s power to control them by statute. 
The Southern, the Western, States are already 
242 


INTERSTATE COMMERCE 


in arms against it, invoking against the Fed¬ 
eral power the Eleventh Amendment. It 
may be that we shall find Congress makes 
laws much better than the States did; we 
can now only hope so. It may be we shall 
be better protected and have better legisla¬ 
tion in Washington than we could make in 
Boston; but the fact will always remain and 
must not be lost sight of that we are rele¬ 
gated to only one tribunal instead of two; 
we are now dependent only on legislation 
from Washington, controlled by a Federal 
Commission, and can no longer protect our¬ 
selves by legislation in the States. This, 
you know, is the great fight now going on 
between the States of the South and the 
West against the Federal Government. 
Federal courts have issued injunctions 
against enforcing the State railroad laws, 
and the States, both by the Executive and 
by the Courts, have been angrily resistant. 
Railroads are instrumentalities of interstate 
commerce unquestionably. I have little 
doubt, therefore, that the Federal Govern¬ 
ment will prevail as to them; but note well 
the vast change if the same principle ap¬ 
plies to all other kinds of business as well. 

243 


THE AMERICAN CONSTITUTION 


We will, however, dismiss the possibility 
of uniform action by the Nation and by the 
States in this great question, as the President 
has dismissed it, and come to the second 
proposition, which is the one recommended 
by the Industrial Commission, and, at first, 
at least, adopted by the President. It has 
also in part passed into law. The Federal 
Bureau of Corporations was established as 
a consequence of it. This principle is sub¬ 
stantially this. Under the Federal Con¬ 
stitution Congress has power to regulate 
interstate commerce and also the persons 
who conduct it. We do not propose the 
revolutionary change that would result from 
giving all corporations Federal charters, but 
we do propose that any and all corporations 
which do interstate commerce shall, either 
under the taxing power or under the direct 
power given to Congress over such com¬ 
merce, be compelled to conform to a certain 
standard both of conduct and of organi¬ 
zation. They shall pay a certain annual 
license tax, and as part of the machinery of 
collecting that tax, make the fullest reports 
giving publicity of all kinds as to all their 
transactions, showing the fares or rates, 
244 


INTERSTATE COMMERCE 


how much they are earning, whether their 
charges compare favorably with those of 
other corporations or even with the standard 
that the Government may set, and, finally, 
giving the Government full power over the 
organization of such corporations. That is 
to say, to see that there is no watered stock, 
no fictitious debt, and none of the other de¬ 
vices by which extortionate profits are made 
or monopolies established. And this by 
automatic process, as it were, prosecuting 
or depriving of their licenses all corporations 
whose reports do not show conformity with 
the law. In my opinion there is no con¬ 
stitutional difficulty as to this course, nor 
have I seen that the President thinks there 
is. I do not know why there seems to be 
a tendency just now to abandon it for the 
more radical, if not revolutionary, other 
method of control, that of requiring all cor¬ 
porations doing interstate commerce busi¬ 
ness to be Federal corporations acting under 
Federal charters, Federal laws, Federal 
courts, Federal control, and paying taxes to 
the Nation and not to the State. This sub¬ 
ject I have repeatedly adverted to in the last 
two lectures. I have tried very hard to look 
245 


THE AMERICAN CONSTITUTION 


the matter fairly on both sides, but remain, 
after five years’ investigation and study, 
just where the Industrial Commission was 
in its final conclusion in the year 1900— 
that this method would be drastic, revolu¬ 
tionary and subversive of the whole prin¬ 
ciple of the American Government, which 
places the control of political affairs only in 
the hands of Congress and leaves social and 
domestic affairs to the States to regulate. 

Moreover, there is a terrible fault in this 
method, as proposed, and so far as it now ex¬ 
ists. The law recommended by the Indus¬ 
trial Commission was fair and equal to all 
corporations. It required all and every cor¬ 
poration doing interstate commerce business 
to report to the Bureau of Corporations, 
placed it under its control in so far as it did 
such business, and gave no power to apply 
to one corporation a different rule than was 
applied to the others. By what it seems to 
me was an unfortunate mistake under the 
act as drawn, the Commissioner of Cor¬ 
porations, an Executive officer resembling 
indeed one of the early commissioners of the 
Norman kings, created for the same sort of 
purpose, was clothed with arbitrary visit- 
246 


INTERSTATE COMMERCE 

atorial, inquisitorial, dictatory powers. That 
is to say, he, or the President advising him, 
is authorized to single out one corporation 
to attack; he is not required to extend the 
same rule and the same methods of attack 
simultaneously to all corporations at the 
same time; he may launch condemnation 
against one man or one corporation as 
arbitrarily as an excommunication by the 
Pope. Visitatorial powers are always ob¬ 
jectionable, but are certainly necessary in 
the case of corporations, which are merely 
creatures of the State and have no natural 
rights; and inquisitorial powers of a most 
drastic and arbitrary kind are given by 
this Act of Congress to the Executive and 
its officers. That is to say, the Commis¬ 
sioner of Corporations or his agents may at 
any time descend upon any corporation, ex¬ 
amine into all its affairs, insist on seeing all 
its accounts, its books, and even its private 
correspondence. This, you know, could 
not be done with an individual citizen under 
Anglo-American constitutional principles. 
You cannot have general search warrants 
nor compel criminating evidence from any 
man. If you do, then you must not prose- 
247 


THE AMERICAN CONSTITUTION 

cute him for any offence that you discover 
by such methods. But our Supreme Court 
has just held that this great liberty right was 
a personal right; that it applies to men and 
not to artificial bodies like corporations; 
and that these latter, being creatures of the 
State, can be treated by it in any manner 
that it choose; and that the Federal Govern¬ 
ment has the same powers over State cor¬ 
porations, in so far as they do interstate 
commerce, that a State itself has over the 
corporations it creates. This decision ac¬ 
cordingly, ratified and armed this law—in 
so far as the examinations and reports of 
interstate commerce corporations were re¬ 
quired. The law was held constitutional 
as to them. We have succeeded, therefore, 
in getting all the matters of corporations 
engaged in interstate commerce under the 
control and the investigation of the Federal 
Government. This was a great achieve¬ 
ment, and it is due entirely to the energy of 
the present President. There can be little 
doubt but that it is perfectly constitutional, 
provided only the definition of the words 
“ interstate commerce ” be not strained. But 
when the law goes on, as it does, to give the 
248 


INTERSTATE COMMERCE 


Commissioner of Corporations, or any ad¬ 
ministrative officer, acting with or without 
the advice of the Executive, the power to 
single out what corporation he shall attack 
and leave others entirely unmolested—when 
the law is not a general law applying to 
everybody, but a permission to the Execu¬ 
tive to harry or attack or fine such parties 
as he or his officers may select—it becomes 
absolutely counter to Anglo-Saxon con¬ 
stitutional principles. The arbitrary power 
to descend upon such corporation as he 
selects, “to go upon it or send upon it” at 
will or on displeasure—is exactly the kind 
of authority, the kind of law, that the Nor¬ 
man kings or Henry VIII or Charles I used 
to enact in council and without the consent 
of Parliament. The mere selection of a 
“trust” for such investigation is business 
ruin to it, though innocent. A bank ex¬ 
aminer visits all banks; otherwise his pres¬ 
ence in a bank would cause a run upon it. 
The right of the Englishman to equal law 
is guaranteed in our Constitution; and even 
the unfortunate corporation is admitted to 
have property rights, and probably the same 
right to equal treatment. The present law, 
249 


THE AMERICAN CONSTITUTION 


therefore, is wrong, and should be amended 
at once or the complaints will grow louder 
and louder. The equal, self-executing 
method recommended by the Industrial 
Commission could, they say (Vol. XIX, p. 
651) “be employed with little or no danger 
to industrial prosperity”—such has not 
proved the case with the present one. More¬ 
over, it may be all very well when admin¬ 
istered by an honest Executive seeking 
fairly the good of all the people; but we 
cannot be sure that we shall always have 
such a President. If the law continues to 
exist as it reads now, it will place in the 
hands of any unscrupulous Executive the 
most tremendous engine that has ever been 
created for subverting the principle of free 
government; for obtaining extraordinary 
privileges or grants of money; for control¬ 
ling the business interests of the country; 
for party corruption, and for perpetuating 
himself or his party in office. We must 
embark upon no course of legislation which 
places in the hands of the Executive or any 
officer the arbitrary power to descend upon 
the trusts—to “send upon or go upon 
them,” as Magna Charta has it—to select 
250 


INTERSTATE COMMERCE 


which one he shall attack, which one he 
shall fine, which one he shall pardon, and 
which one he shall leave immune. 

The tendency of the time is the blind 
rush to cure an immediate evil* oblivious 
of all else, reckless of method or conse¬ 
quences. Because certain sections of the 
country were aggrieved by excessive freight 
charges we are asked to abandon our frame 
of government and put our lives and our 
affairs in the hands of a centralized power 
at Washington. Have you any of you 
thought of the other side, even in this sim¬ 
plest and most proper application of the 
Roosevelt theory ? We have, in this State, 
complained a great deal of the merger of 
railways, of the operation of the Boston & 
Albany, for instance, by the New York 
Central. Have you yet considered the 
practical working of the President’s plan, 
even as to railroads—which we all admit 
to be a proper subject of interstate com¬ 
merce ? That it will ultimately place the 
control of our railways, yes, even of our 
trolley lines, in the hands of a power far 
more remote and far more indifferent to 
the welfare of the people of Massachusetts 
251 


THE AMERICAN CONSTITUTION 


than even the management of the New 
York Central can be ? The directors of 
the New York Central must, at least, care 
somewhat for the prosperity of their busi¬ 
ness in Massachusetts; but a Government 
controlled by the Congressmen of the Mis¬ 
sissippi Valley or the far West will be quite 
as indifferent to our needs and desires as 
they have been for the past ten years to 
our clamor for free coal, free hides, and 
other free raw materials. We now com¬ 
plain of the delays on the Boston & Albany 
Railroad; but we can at least go before our 
own State Railroad Commission, and they 
have power at once to give redress. But sup¬ 
pose it were a Federal corporation; it could 
not be sued in the courts of Massachusetts, it 
would not be subject to the laws of Massa¬ 
chusetts, it could not be controlled by our 
Commission, and to any complaint of a 
passenger from Newton Centre that his 
train was late, it would serenely refer him 
to the Interstate Commerce Commission at 
Washington—at such time as they chose or 
might find leisure to listen to his story. I 
admit that the railroads are one proper sub¬ 
ject of regulation under the Interstate Com- 
252 


INTERSTATE COMMERCE 


merce Clause of the Constitution; but I 
earnestly assert that if all control or power 
over them is taken from the people of the 
States where they run, and handed over to 
an overworked board of political appointees 
at Washington—the last condition of the 
people of these States will be worse than the 
first. 

We have now concluded our brief survey. 
I shall be well content if I have called your 
attention to a few cardinal propositions. I 
am aware that in this course I have taken 
the unpopular side. A Chicago newspaper, 
referring to these lectures, uses the following 
words: “Whenever a Federal railway or 
food inspection law is needed, whenever any 
evil is to be cured which the States will not 
correct, the Professor would urge us to let 
the evil be, lest we find ourselves hopelessly 
under the Government at Washington. Lib¬ 
erties are of little worth if they cannot be 
exercised.” Now this is a fair sample of 
the kind of criticism I have met with, and 
betrays the need of education of this Chicago 
editor in just such subjects as we have tried 
to explain. Note in the first place that the 
very instances he chooses are precisely the 
253 


THE AMERICAN CONSTITUTION 


instances which I have mentioned as proper 
for Federal regulation. I do not question 
that both railways and the commerce of 
adulterated foods or drugs across State lines 
may properly, and wisely, and constitution¬ 
ally be controlled and regulated by the 
Government; the Industrial Commission 
drew up a bill for Congress which should in 
the same manner control the traffic across 
State lines in goods the product of convict 
labor. This is apt to be the case with all 
the advocates of Federal aggrandizement. 
The examples they choose are precisely the 
ones upon which we are all agreed. If I 
have seemed unduly critical of our present 
President, it is merely that he does so many 
more things than other Presidents have 
done that there is greater chance that some 
provoke our discussion. With many of his 
objects I am in sympathy. But I am look¬ 
ing to the future. In my opinion, every one 
of these objects can be gained in constitu¬ 
tional ways, in methods which will not alter 
our frame of Government and hand over our 
most precious heritage shattered and im¬ 
paired, to be perverted to the selfish uses 
of some less patriotic President in some 
254 


INTERSTATE COMMERCE 


future time. The American people are 
silent to-day. That is simply because they 
trust the good intentions of the President. 
If it were Andrew Johnson that were doing 
these things, you would hear a very differ¬ 
ent story. But if the States, to use the 
Chicago newspaper’s phrase, will not cor¬ 
rect an evil, it is, in the last analysis, be¬ 
cause they do not consider it such. When 
they do so consider it, they can cure it them¬ 
selves, either by ordinary legislation or, if 
necessary, by amendment to the Constitu¬ 
tion. As Mr. Roosevelt said of Oliver 
Cromwell: “He was for good government, 
but it was not for him alone to insist on 
what good government was.” 

I shall be satisfied if I have left some half 
a dozen concepts clear in your mind. First, 
local self-government and the common law, 
both forever essential to a free English 
people. Second, the separation of the pow¬ 
ers, that the Executive shall not control 
legislation, or government officers assume 
judicial powers. Third, the great prin¬ 
ciple that has kept our Nation alive so far, 
that the Centralized Government of our 
mighty empire is confined to political pow- 
255 


THE AMERICAN CONSTITUTION 


ers alone, National defence, our relation to 
other nations, and, possibly, national im¬ 
provements—such as the deepening of the 
Mississippi River; while the domestic af¬ 
fairs of the people—men’s lives and liberties, 
their acquirement of property, and their 
relation to their neighbors—is left to each 
man’s own State to control, each State 
wisely differing in its laws where differences 
of climate, race conditions, or industry so 
demand; and that any attempt forcibly to 
make them all conform to a procrustean 
rule is the height of unwisdom and folly. 
And, finally, that our Constitution demands 
everywhere a republican form of govern¬ 
ment—everywhere that our flag shall go. 
As the Thirteenth Amendment puts it, 
slavery shall not exist—not only in any 
State—but in any place subject to the juris¬ 
diction of the United States. 

And the great document itself is not a 
dry code of rules, but the sum and substance 
of our liberties gained in a thousand years 
of struggle for freedom; and, as was said 
by one of our great Chief-Justices, the Con¬ 
stitution “ speaks not only in the same words 
but with the same meaning and intent with 
256 


INTERSTATE COMMERCE 


which it spoke when it came from the hands 
of its framers and was voted on and adopted 
by the people of the United States”; and 
by the other, Marshall, “No political 
dreamer was ever wild enough to think of 
breaking down the lines which separate the 
States, and of compounding the American 
people into one common mass. Of con¬ 
sequence when they act, they act in their 
States. But the measures they adopt do 
not, on that account, cease to be the meas¬ 
ures of the people themselves.” And again, 
in another case: “The genius and character 
of the whole Government seems to be that 
its action is to be applied to all the external 
concerns which affect the States generally, 
but not to those which are completely 
within a particular State.” And, finally, by 
George Washington: “If in the opinion of 
the people the distribution or modification 
of the constitutional powers be in any par¬ 
ticular wrong, let it be corrected by an 
amendment in the way which the Constitu¬ 
tion designates. But let there be no change 
by usurpation; for though this in one in¬ 
stance may be the instrument for good, it 
is the customary weapon by which free 
257 


THE AMERICAN CONSTITUTION 


Governments are destroyed. The precedent 
must always greatly overbalance in per¬ 
manent evil any partial or transient benefit 
which the use can at any time yield/’ And 
by Abraham Lincoln: “To maintain in¬ 
violate the rights of the States to order and 
control under the Constitution their own 
affairs by their own judgment exclusively 
is essential for the preservation of that 
balance of power on which our institutions 
rest.” 

It is a sad contrast between the way that 
so many of our people, or our newspapers, 
feel to-day, one hundred and twenty years 
after the adoption of our Magna Charta, 
and the way the people felt in England, 
for the first one or two centuries after the 
adoption of their own. The great Con¬ 
firmation of Charters of Edward I (1297) 
provides—strangely anticipating the Ameri¬ 
can doctrine of the enforcement of the 
Constitution by the courts—(Section 2), 
“And we will, that if any Judgment be 
given from henceforth contrary to the 
Points of the Charters aforesaid by the 
Justices, or by any other our Ministers 
that hold Plea before them against the 
258 


INTERSTATE COMMERCE 

Points of the Charters, it shall be undone, 
and holden for noughtand (Section 3), 
“And we will, that the same Charters shall 
be sent, under our Seal, to Cathedral 
Churches throughout our Realm, there to 
remain, and shall be read before the People 
two Times by the Year;” and (Section 4), 
“And that all Archbishops and Bishops 
shall pronounce the Sentence of Excommu¬ 
nication against all those that by Word, 
Deed, or Council do contrary to the afore¬ 
said Charters, or that in any Point break or 
undo them. (2) And that the said Curses 
be twice a Year denounced and Published 
by the Prelates aforesaid/’ And in 1253, 
only thirty-eight years after John’s Char¬ 
ter, in the thirty-seventh year of the reign of 
Henry III, a popular King, a great jurist, 
and a radical maker of new laws: “On the 
third day of May [I read from the Statutes of 
the Realm in Latin] in the great hall of the 
King at Westminster, in the presence of the 
King and his brother and the Marshall of 
England , and the other estates of the Realm , 
We , Boniface , Archbishop of Canterbury , 
and the Bishops of London , and Ely , and 
Rochester , and Worcester , and Lincoln , and 
259 


THE AMERICAN CONSTITUTION 


Norwich, and Carlyle, and St. David’s, all 
appareled in pontificals, with tapers burn- 
ing, against the breakers of the liberties or 
customs of the Realm of England, and 
namely those which are contained in the 
Charter of the Common Liberties of Eng¬ 
land, excommunicate, accurse, and from the 
benefits of our Holy Mother the Church, 
sequester all those who, by any craft or 
wiliness, do violate, break, diminish or 
change the statutes and free customs of the 
Realm of England, to the perpetual memory 
of which excommunication we, the afore¬ 
said prelates, have put our seals.” So in 
1253 they felt—and so in 1907 should we 
feel now. 


260 


INDEX 


Act of government (Cromwell), 
126. 

Act of settlement, 119, 128. 

Administrative law, peculiar to 
government, not in U. S., 23. 

Admiralty, in U. S. courts, 135. 

Aliens (see Naturalization). 

Amendments to Constitution 
(see Constitution, Federal), 
143, 167, 196, 201; (for sepa¬ 
rate amendments, see nu¬ 
merals;) not possible in cer¬ 
tain matters, 224-226. 

Annexation of territory, not 
expressly permitted, 176. 

Anti-trust acts, unnecessary, 
60. 

Apology, form of, to James I, 
116. 

Appeals, government’s right to, 
208. 

Appropriation, necessary for 
all expenditure, 193. 

Arbitrary power, forbidden in a 
republic, 90. 

Arms, right to bear, a constitu¬ 
tional right, 87, 112, 127, 
152, 197. 

Army (see Martial, Military 
Law), standing, forbidden, 
40, 41, 151, 178, 202. 

Army and navy, governed by 
Congress, commanded by 
President, 160, 177. 

Arrest, right to hear cause of, 
43, 197; freedom from, of 
Congressmen, 151, 191, 202. 


Assembly, right of, in England, 
86, 127; in U. S., 86-87, I 5 2 - 

Assistance, writs of, history of, 
205. 

Attainder, bills of, provision 
against, still necessary, 2; 
history of, 96, 108; forbidden 
in federal and state con¬ 
stitutions, 149, 193. 

Attaint, of juries, for false ver¬ 
dict, 100. 

Bacon, Attorney-General, con¬ 
fers with judges, 117. 

Bail, right to, 43, 127, 153, 
J 97 - 

Banishment, not allowed as a 
punishment for crime, 45, 63. 

Bankruptcies, federal power to 
make laws, 161, 176. 

Battle, trial by, superseded, 95. 

Beef Trust cases, 154, 206. 

Bill of Rights (see Constitu¬ 
tions), English, 16, 89, 99; of 
Virginia and Massachusetts, 
16; federal, 16, 188. 

Billeting of soldiers (see Mar¬ 
tial Law), history of, etc., 
112; forbidden in U. S., 152, 
196. 

Blacklists, early precedents of, 
72. 

Borrow, power to (see Debt), a 
national power, 176. 

Boycotts, always unlawful, 59. 

Bradshaw, speech to Cromwell, 
125. 


INDEX 


Brownsville riot, discharge of 
troops for, 2. 

Bryan, quoted, etc., 193. 

Buckingham, Duke of, a favor¬ 
ite, 121, 122. 

Bureau of Corporations (see 
Corporations). 

Burr, Aaron, trial of, 89, 111. 

Bute, Earl of, private cabinet, 
121. 

By-laws, of guilds, in restraint 
of trade, etc., unlawful, 59, 
68 . 

Cabinet, English, 165. 

— private or ‘‘kitchen,” un¬ 
constitutional, 120. 

Cade, Jack, rebellion of, 112. 

Capital punishment, not a fed¬ 
eral power in ordinary crimes, 
212. 

Centralization (see also Im¬ 
perialism, Federal Govern¬ 
ment), experience of, in 
England, 12, 96, 97, 98, 115, 
184; dangers of, 163, 179, 
228-230, 251, 255; under 
Fourteenth Amendment, 188, 
224, 230. 

Chambers, Richard, speech of, 
I2 3 - 

Chancery (see Injunction), his¬ 
tory of jurisdiction, 47-49, 

51, 53 > 9 6 * I02 J in u - S., 54 - 

Charter of Liberties, Henry I, 

95 - 

Church, no established, in U. 
S. (see Religions), 84. 

Church of Rome, history of, in 
England, 95. 

Citizens, of states, privileges of, 
etc., 155; of U. S., who are, 
160. 

Class legislation (see Law, 
Special Privileges). 

Coercion, of states, by federal 
government, 137. 


Coin money, power to, 176. 

Coke, Chief-Justice, refusal to 
give the king his opinion, 
116, 155; disgrace of, 118, 
121. 

Color (see Race). 

Combinations (see Trusts), in 
restraint of trade, alw-ays un¬ 
lawful, 60, 73. 

Comity, doctrine of, as to cor¬ 
porations, 235. 

Commerce (see Interstate). 

Commerce and Labor, Depart¬ 
ment of (see Corporations ), 
204, 205. 

Commissions (boards), cannot 
be created, not subject to 
law, 24, 103, 122, 123, 147, 
218, 219. 

Common law (see Law, Laws), 
the result of customs of a free 
people, 26; struggle to estab¬ 
lish, in Ehgland, 30,102, 255; 
preserved in U. S., 135, 153, 
177, 184, 255; sound only in 
damages, 47. 

Commonwealth, English, his¬ 
tory of, 125. 

Communism, inconsistent with 
American constitutions, 82. 

Compurgation, trial by, 79. 

Confirmation of charters, cited, 
83 - 

Congress, sessions of, annual, 
116, 150, 183, 202; privileges 
of members, 151; general 
powers of, 158-164, 179 (see 
Federal Powers ); qualifica¬ 
tions for, 189; judges of elec¬ 
tions, etc., 210. 

Conscience, rights of (see Re¬ 
ligions), 84. 

Conspiracy, statutes against, 
68, 70; what is, 87. 

Constitutions, Anglo-Saxon, re¬ 
sult of growth, not new- 
created, 13. 


262 


INDEX 


Constitutions of states, origin 
of, opposite from federal, 15, 
16. 

Constitution, English, differ¬ 
ences from ours, 9, 10, 18; 
restrains only the king and 
his officers, n; not definite, 
20; no restraint on Cromwell, 
126. 

— federal, general nature of, 
1,3, 4, 91,131,139,140, 202- 
203; not obsolete, 1, 17; 
guarded by supreme court, 
7; expresses permanent will 
of people, 7, 31, 33, 143; is 
supreme both over laws of 
legislatures and acts of offi¬ 
cials, 10, 18, 202; first put in 
writing, 15, 30, 42; influences 
creating anti-democratic, 15; 
first ten amendments a Bill 
of Rights, 16; restrictions in 
interest of states and people, 
in state constitutions, for 
people alone, 17; does not 
apply to all territory ac¬ 
quired, 187; usurpation or 
perversion of, feared by 
Washington, 258. 

Constitutional government, ob¬ 
ject of, to protect individuals, 
31- 

Contempts, of court, history of, 
54; proposed legislation con¬ 
cerning, 177. 

Contract, freedom of, a con¬ 
stitutional principle, 78. 

Copyrights, power to grant, 
160, 177. 

“Cornering the market” (see 
Engrossing, Trusts ), always 
unlawful, 68. 

Corporations in U. S., effect of 
state charters to, 52,184, 234, 
237; undesirability of fed¬ 
eral, 98, 180, 185, 186, 245; 
federal bureau of, 147, 204, 


244 (see Interstate Commerce 
Commission) ; federal con¬ 
trol of, 204, 228-229; State 
powers over, 240, 241; Com¬ 
missioner of Corporations, 
247, 249; corporations not 
protected by 4th and 5th 
amendments, 248. 

Corruption of blood, forbidden, 
150- 

Council (see King, Orders in 
Council). 

Courts (see Federal, Local 
Courts ), county or common- 
law, jealously preserved in 
England, 12; congressional 
courts, 177. 

Criminating evidence (see Evi¬ 
dence, Search). 

Cromwell, Oliver, cited, etc., 
87, 93. 124, 125. 

Cromwell, Thomas, death by 
attainder, 108. 

Currency legislation, recent, 
criticised, 176. 

Customs (see Law), free, se¬ 
cured by English Constitu¬ 
tion, 57. 

— (duties), imposed by parlia¬ 
ment only, 123. 

Day-work (see Piece-work). 

Debt, national, power to incur, 
159- 

Declaration of Independence, 
cited, 78, 84, no. 

Delegation of powers, in Con¬ 
stitution, 141, 143.. 

Democracy, American, in¬ 
vented written Constitution, 
J 3- 

Dictatorial power, in king, etc., 
112. 

Direct legislation (see Legisla¬ 
tion by the People). 

Direct taxes (see Taxation ), in 
effect forbidden, 151. 


INDEX 


District of Columbia, Congress 
legislates for, limited to ten 
miles square, 178. 

Divorce laws, national, 224. 

“Due process of law” (see 
Law, Liberty, Property, 1 Mag¬ 
na Charta). 

Dunning resolution censuring 
the Crown, 130. 

Duties (see Taxes), imposts, 
etc., by states, 137, 189; by 
U. S., to be uniform, 151. 

Edward the Confessor, laws 
of, renewed under Norman 
kings, 94, 95- 

Eighth Amendment, 153, 197. 

Elections, must be free, 107, 
112, 115, 189, 200. 

Eleventh Amendment, 197. 

Eliot, John, life of, 121, 124. 

Emigration, general right to, 
45- 

Eminent domain, constitu¬ 
tional principles of, 83, 197. 

Engrossing (see Forestalling ), 
early laws against, 68. 

Equality, passion for, may be 
dangerous to liberty, 20. 

— guaranteed by American 
constitutions, 78-80. 

— before the law, in England, 
79-98; in U. S., 155, 156. 

Equity (see Chancery ). 

Ethelbert, laws of, chain un¬ 
broken since, 13. 

Evidence, right to (see Wit¬ 
nesses), self-incriminating, 
immunity from, 153, 196, 
204, 205. 

Ex post facto laws forbidden, 
149- 

Excises (see Duties). 

Executive (see President, King) 
may not make nor suspend 
laws, 3, 6; nor control courts 
or judges; 6; powers of, in 


U. S., 134,167,181-183, 222; 
too great under recent stat¬ 
utes, 250-251. 

Export taxes, forbidden in U. 
S-, i57» 193- 

Extradition, allowed to states, 
197- 

Faith, “full faith and credit” 
clause discussed, 186, 190. 

Federal and state system (see 
States* Rights) peculiar to 
U. S., 6. 

Federal constitution (see Con¬ 
stitution). 

Federal courts, increasing juris¬ 
diction of, 53, 65, 185. 

Federal government (see States* 
Rights), powers of, concern 
foreign affairs, 7, 14, 33.136- 
*39> i58-i 6 4, 256, or 257; po¬ 
litical matters, 176-183, 212, 
230, 255; are limited, 14, 132, 
136, 140, 167, 175, 196, 199- 
203; guarantees a govern¬ 
ment republican in form, 14, 
35, 186; present tendency to 
increase powers of, 35, 98, 
188; has only two direct 
powers over states, 137, 186; 
has no general imperial 
power, 144, 174; general 

division of power between 
states and nation, 169-203; 
powers forbidden to nation 
(zone X in chart), 171, 190; 
permitted (zone A in chart) 
to nation, 175-203; and also 
forbidden to states (AZ), 181; 
forbidden to both (ZX), 190; 
over interstate commerce, 
227-230. 

Federal incorporation, dis¬ 
cussed, 78, 80, 185, 186. 

Fifteenth Amendment, 223. 

Fifth Amendment, 149, 150, 
153, 196. 


264 


INDEX 


Fines, at the common law, 48; 
not to be excessive, 102, 127. 

First Amendment, 152, 196. 

Forest reservations, no power 
to acquire, 178. 

Forfeitures, forbidden, 150. 

Fourteenth Amendment, 137, 

149, i 5 °* I 5 6 > 158, 187, 188, 

197, 222, 223, 230. 

Fourth Amendment, 152, 196. 

Freedom (see Liberty ), how 
gained in England, 58. 

— of contract (see Contract). 

— of speech, etc. (see Speech ). 

Freights, may be regulated, in 

foreign commerce, 215, 216. 

French Revolution, abolished 
the trade guilds, 61. 

Gardiner, quoted, 119. 

Garfield, action in beef-trust 
cases, 154. 

“General welfare” clause dis¬ 
cussed, 159. 

Georgia, constitution, laws of, 
cited, 72. 

Gild (see Guild). 

Gneist, quoted, hi. 

Government (see Federal , 
States’ Rights , etc.), object of 
republican, to enforce will of 
majority, of constitutional, 
to protect minority, 31. 

Grand jury (see Indictment ), 
institution of, 96. 

Green, T. R., quoted, 125. 

Guilds (see Trade , By-laws), 
not allowed to the injury of 
individuals, 61, 74; other¬ 
wise in France, etc, 61, 71; 
freedom of, 58. 

Guizot, cited, etc., 96. 

Habeas Corpus, history of, 
43, 127; may not be sus¬ 
pended, 193. 

— withheld in Philippines, 89. 


Habeas Corpus Act, 44, 149. 

Hampden, John, 124. 

Health laws, national, 224. 

Hooker, “Ecclesiastical Pol¬ 
ity,” cited, 91. 

House, is castle, etc. (see 
Search). 

House of Representatives (see 
Congress , Elections ), how 
chosen, 190, 200; powers of, 
patronage, etc., 221. 

Humphrey, Judge, decision of, 
206. 

Immunity, principle of, dis¬ 
cussed (see Evidence ), 204- 
205. 

Impeachment of Buckingham, 
122; constitutional princi¬ 
ples concerning, 150. 

“Imperialism,” imperial pow¬ 
ers (see Centralization , Terri- 
tory, Federal Government), 
represented by segment (AZ) 
in chart, 172, 174, 175, 186, 
201. 

“Implied powers,” discussion 
of, 140, 174. 

Imposts (see Duties, Taxes). 

Income taxes, amendment for, 
211. 

Indictment, necessary since 
1352 (see Information), 102; 
in U. S., 196. 

Individual rights (see Law, 
Liberty, Property), 90; in¬ 
cluded in segment (ZX) in 
chart, and in (Y), 171. 

Individualism, not socialism, 
the common law, 75, 90. 

Industrial Commission, recom¬ 
mendations of, as to trusts, 
239-246, 250; predict dan¬ 
gers to prosperity under pres¬ 
ent laws, 250. 

Informations, in lieu of indict¬ 
ments, not favored, 96. 


265 


INDEX 


“Inherent powers,” discussion 
of, 144, 174. 

Inheritance taxes, discussed, 
211. 

Injunction, history of writ, 46- 
55; abuse of, by federal 
courts, 53, 64. 

Interstate commerce, to be 
free, etc., 157, 215; federal 
power over, 161-163, 178, 
204, 212-228, 240-243. 

Interstate Commerce Commis¬ 
sion, powers of, etc., 90, hi, 
147, 215-220, 243- 

Intoxicating liquors, traffic in, 
conducted by state, 77. 

Jackson, Andrew, 208. 

Jefferson, quoted, etc., 5, 15, 
187. 

Jeopardy, twice in, etc., 196, 
207. 

Jones, Chief-Justice, quoted, 
127. 

Judges, to be independent of 
Executive, etc., 41, 90, 103, 
154, 157; learned in the law, 
etc., 98; not to give opinions 
to Executive, 103, 116, 126, 
155; to hold for life, 119, 128, 
193; election of, discussed, 
i?3, 194- 

Judicial Department (see Sepa¬ 
ration of the Powers), powers 
of, in U. S., 135, 160, 163, 
169, 183, 184. 

Jurisdiction, of suits between 
citizens of different states, 
52- 

Jury (see Trial by Jury), right 
to serve on, 89; grand juries, 
89, 96. 

Justiciar, office and powers of, 
in England, 50. 

Kentucky, constitution, laws 
of, cited, 90. 


King (see Executive), may not 
make laws, 4, 6, 26, 94, no, 
116, 123; nor suspend them, 
2, 3, 128; subject to Con¬ 
stitution, 11, 92-130; is 

fountain of justice, in Eng¬ 
land, 28, 98, 99; powers of, 
in chancery, 50, 102; in 

council, 50, no, in; king 
courts jealousy of (see Local 
Courts), 97, 98,100; attempts 
to control juries, 101; cen¬ 
sured, 129; the parliament, 
113,116,121; the judges, 116, 
118, 126. 

Klein, Abbe, cited, 87. 

Knight (Sugar-Trust) case, 
238- 

Labor, liberty of (see Trade), 
55-62, 66, 72, 73; in modern 
state constitutions, 62. 

— may not be compelled, 49, 
54; compulsory in early 
times, 70. 

— wages of, 69-71; hours of, 
72, 145- 

Labor laws, in U. S., 145, 224; 
uniformity not desired, 225. 

Laborers, statute of (1369), 
69. 

Land, ownership of, made 
freemen in England, 58; 
federal ownership of, lim¬ 
ited, 178. 

Law, European view of, the 
command of sovereign, not 
as in England, the customs 
of a free people, 20, 26, 28, 
39, 42; does not apply to 
government, 24, 25. 

— common, Norman kings 
compelled to recognize, 4, 5, 
39- 

— right to, meaning of, dis¬ 
cussed, 21-25, 37> 6 8> 

118, 128. 


266 


INDEX 


Law, unwritten, customary in 
origin, 13, 27; executed by 
people, 27 (see Martial, 
Military, Roman, Civil, 
Canon Law, Chancery). 

Laws, Anglo-Saxon, continu¬ 
ous from earliest times, 13. 

— government of, not of men, 
in U. S., 5. 

— in U. S., subject to Supreme 
Court as to constitutionality, 
5, 9, 10, 18. 

— suspension of (see Suspen¬ 
sion of Laws by Executive). 

Legislation by the people, 
early, in England, 8. 

Legislative, Executive and Ju¬ 
dicial (see Separation of the 
Powers). 

Legislative power, in federal 
government, 133, 168, 170. 

Legislatures, in U. S., have 
limited, delegated powers, 8, 
9, 18, 20, 32, 33; rights and 
liberties of, 42; may not be 
dictated to, by Executive, 
108, 130. 

— of states, powers unlimited, 
14, 17, 170. 

— in England (see Parliament). 

Liberties of the people, con¬ 
stitutions embody, 3, 4, 11, 
18, 91, 174; struggle for, in 
England, 4, 41, 107; bills of 
rights represent the irreduci¬ 
ble minimum, 12, 36; en¬ 
dangered under popular 
kings, 19; secured in Magna 
Charta, 56, 57; not applica¬ 
ble to other races, 195. 

Liberty (see Liberties), a right 
guarded mainly by the states, 
14; political liberty by U. S., 
18; general right to, 42-67, 
148-149. 

Life, right to (see Liberty ), 
42. 


Lincoln, cited, etc., 149, 258. 

Local courts, necessary to lib¬ 
erty, 6, 24, 41, 43, 100, 

184. 

Local self-government (see 
States’ Rights), in U. S., etc., 
6, 84, 94, 135, 146, 163, 229- 
233, 255. 

— reconciled with federal pow¬ 
er, 6; modern attack upon, 
under interstate commerce, 
161, 229-233; under federal 
incorporation (see Corpora¬ 
tions), 229-233. 

Locomotion, a constitutional 
right in U. S., 45. 

London, freedom of, 57. 

Louisiana, constitution, laws, 
etc., 71. 

Magna Charta, origin of, 9, 
37, 56, 66, 98, 122; origin of 
our Bills of Rights, 16, 21, 
36, 81, 83, 88, 89, 197, 233; 
confirmed by kings, 30; 
cherished by people, 259. 

Marriage laws, in U. S., 145, 
224; uniformity inadvisable, 
225. 

Marshall, John, cited, etc., 89, 

2 57- . 

Martial law, no justification of 
soldiers’ acts, 38, 40; does not 
exist in England or U. S., 39, 
122. 

Massachusetts constitution, 
laws of, cited, 5, 16, 34, 38, 
60, 77, 145, 205. 

Military law, does not exist 
outside the army, etc., 38, 
177; established by annual 
act of Parliament, or bien¬ 
nial, of Congress, 39, 40; 
civil power superior to, 41. 

Militia, states control, 152, 156, 
199, 200; when President 
may order, 152, 160, 177. 


267 


INDEX 


Monopolies, unlawful in Eng¬ 
land, 57, 66, 73, 114, 116; 
statute of, 74, 123; in U. S., 
160. 

Montana, constitution of, cited, 
62. 

Montesquieu, quoted, 5, 6. 

Moody, Attorney-General, 206. 

National government, pow¬ 
ers, etc. (see Federal ), not, 
in U. S., omnipotent, 20, 202; 
represented by zone A in 
chart, 169-187; powers only 
exercised by, in segment AZ, 
171; effect of Fourteenth 
Amendment on, 233; of in¬ 
terstate commerce clause, 
234- 

Natural rights, inalienable, etc., 
85, 170. . 

Naturalization, power of, in 
Congress, 176; qualifications 
for office, 189. 

Navy, Congress alone may 
maintain, 177, 189. 

“Necessary and proper,” clause 
discussed, 179, 180. 

Negroes (see Race Distinc¬ 
tions ), may vote, 223. 

Nevada constitution, laws of, 
cited, 45. 

New Hampshire, constitution 
of, cited, 90. 

New Jersey, corporation laws 
criticised, 236-237. 

New York constitution, laws 
of, cited, 28, 71. 

Ninth Amendment, 91, 139, 
202. 

Norman law (see Roman Law , 
Law). 

North Carolina, constitution of, 
cited, 90. 

North Dakota, constitution of, 
cited, 61. 

Northern Securities Case, 237. 


Oath, of President, to pre¬ 
serve constitution, 134. 

Offices, plurality of, forbidden, 
191. 

Oklahoma, constitution of, 
cited, 8, 34, 54, 76, 82, 88, 
209. 

Onslow, Speaker, quoted, 222. 

“Orders in Council,” history 
of, no. 

Otis, James, 205. 

Outlaw, origin and meaning of 
word, 27. 

Pardons, before trial, uncon¬ 
stitutional, 89. 

Parliament, in England, origin 
of, 9; is supreme even over 
constitution, 9, 18, 116; at¬ 
tacks on constitution, rare, 
93, 125; sessions of, 103, 116, 
120, 122, 124, 130. 

Patents, right to grant, 160, 
177. 

Penn, William, prosecution of, 
100. 

People (see Liberties of), make 
constitutions, 8, 10, 133, 141, 
143- 

— reserved powers of, in U. S., 
9, 21, 90, 91, 132-136, 139, 
156-157, 171, 197, 201, 202; 
expressed in chart in sphere 
(Y), 198, 201; government 
of and by, an Anglo-Saxon 
principle, 13, 14, 15; are 
sovereign (see Sovereign ); 
writs in name of, 28, 29. 

“Personal government,” at¬ 
tempts at (see President, 
King), 103, 106, 115, 120, 
129; safeguard against, 150. 

Petition of Rights, 99, 112, 121. 

Petition, right of (see Assem- 
bty). 

Philippine Islands, our policy 
as to, 195. 


268 


INDEX 


Piece-work, work in gross, or by 
contract, first allowed in 
1360, 68. 

“Pinkerton men,” forbidden in 
U. S. (see Retainers ), 88. 

Police powers of states, should 
be preserved, 230-232. 

Ports, preference of, in' one 
state, forbidden, 214. 

Post-roads, federal power over, 
161, 176. 

President (see Executive , King), 
no authority over states ex¬ 
cept, etc., 14, 15; election of, 
200; is subject to law, 23; 
may neither make nor sus¬ 
pend law, no; has generally 
powers of English king, 134, 
144, 165, 168; may not in¬ 
terpret constitution, 144; is 
sworn to preserve it, 134; 
general powers of, 156, 164- 
166, 181-183; may provoke 
war, 160, 165; make treaties, 
164, 183; veto, 164; or ad¬ 
vise legislation, 222; may 
convene Congress, 165. 

Press, freedom of (see Speech ), 
forbidden in Philippines, 89; 
in England, 112; secured in 
U. S., 152. 

Prices, not to be fixed by com¬ 
binations (see Restraint of 
Trade), 68. 

Privacy, right to (see Search ), 
205. 

Privilege, of Parliament (see 
Free Speech, Arrest), 104. 

Privy Council, origin, 102. 

Property, right of, guarded 
mainly by states, 14, 15, 
66 . 

— old constitutional provisions, 
80-85; in federal constitution, 
150. 

Punishment (see Banishment), 
not cruel, etc., 123, 127, 197. 


Pure Food Law, discussed, 254, 
255- 

Race distinctions, forbidden 
by U. S. Constitution, 36, 
197, 223. 

Railroad Rate Regulation Act 
(Hepburn Act), 90, 147, 214, 
215-218. 

Railroads, federal control of, 
177, 237. 

Religions, free, etc., in U. S., 
84, 152, 197. 

Representation, according to 
population, 200. 

Representative government, 
origin of, in England, 9, 97; 
tendency to check by the 
state constitutions, 34; by 
initiative and referendum, 
34; perished on the Conti- 
tinent, 105. 

Republican form of govern¬ 
ment, what is, 76, 174; na¬ 
tion and states must both 
maintain, 137, 256. 

Restraint of trade (see M0- 
nopoly, Trusts), 67. 

Retainers, early laws against, 

88 . 

Revenue bills (see Taxation ), 
must originate in lower 
house, 191, 202. 

Revolution, American, re¬ 
formed British constitution, 
130- 

Riots, states may call on nation 
to quell, 200. 

Roman law (see Law), kings 
endeavor to bring into Eng¬ 
land, 4, 50, 102. 

Roosevelt, cited, etc., 80, 126, 
132, 141, 143, 144, 154, 168, 
234, 255. 

Sea, crimes at, federal jurisdic¬ 
tion of, 177. 


269 


INDEX 


Search, abuse of, under James, 
117; search-warrants, gen¬ 
eral, now unconstitutional, 
152, 196, 205, 247. 

Secession, no right of, 137, 173. 

Second Amendment, 152, 196. 

Senate, powers of, discussed, 
156, 183, 191, 220. 

Senators, states always entitled 
to two, 36, 137, 196, 200; 
election of, by people, dis¬ 
cussed, 208, 209. 

Separation of the powers, doc¬ 
trine peculiar to U. S., 5, 18, 
32, 132; actual division, in 
U. S., I 33 -I 35 . 214; confu¬ 
sion of, in England, 94, 102, 
103, 146, 148, 168; discussion 
of doctrine, 218-221, 255. 

Servants, notice of discharge of, 
early required, 72. 

Service, personal contract for, 
not enforceable, 66. 

Seventh Amendment, 153, 184, 
197 - 

Ship-money, 124. 

Sixth Amendment, 153, 197. 

Slavery, indeterminate service 
in, 55; in England, 58; for¬ 
bidden in all U. S. territory, 
187, 197, 256. 

Socialism, forbidden at the 
common law, 75; in the U. S., 
81, 212. 

South Carolina, constitution of, 
cited, 76. 

Sovereign, in England Parlia¬ 
ment or the House of Com¬ 
mons, 18, 30, 122; in U. S., 
the people, 18, 30,33,36,133, 
139; mints run in name of, 
28. 

Special privileges, forbidden 
(s Monopolies), 75, 79, 202. 

Specific performance (see Chan¬ 
cery) not a common-law 
power, 47, 64. 


Speech, freedom of, and of the 
press, a cardinal right, 86, 
hi, 152; in Congress, 151, 
191, 202. 

Standing armies unconstitu¬ 
tional, etc., 88, 105, 107, 113, 
126, 127, 151. 

Star chamber, court of, 51, 96, 
102, 107, 123.. 

State socialism, in Oklahoma, 
76; in South Carolina, 77; 
in Massachusetts, forbidden, 
77 - 

States, States’ Rights (see Fed¬ 
eral Government , Constitu¬ 
tions ), 138, 141, 144-146. 

169-204, 257; powers of 

states represented by zone 
(B) in chart, 169, 199-201; 
forbidden powers, by zone 
(Z) in chart, 171, 189; powers 
of, are social, local or do¬ 
mestic, 14, 33. 135. 256, 
258. 

— must maintain republican 
form of government, 14, 
76. 

— no right to secede, 35; ex¬ 
cept in one event, 36, 
137 - 

— creating new states, 137,186; 

as to militia, 152, 156. 

states’ rights represented by 
segment (BX) in chart, 172; 
may not be sued, 197; over 
commerce and industry, 227- 
233, 243; invaded by Four¬ 
teenth Amendment, 230. 

Strafford, 124. 

“ Strict construction,” not neces¬ 
sarily unpatriotic, 174, 179, 
180, 211. 

Strikes, a conspiracy under 
older English law, 70. 

Stubbs, Bishop, quoted, 28. 

Suffrage, right of, in English 
history, 104. 


270 


INDEX 


Supreme Court, of U. S., 
created by people to guard 
constitution, 5, 7, 18; may 
have appellate jurisdiction 
of all courts, 177. 

Suspension of laws, by execu¬ 
tive, forbidden in England, 2; 
example of, in U. S., 3. 

Tacitus, cited, 79. 

Taney, cited, 256. 

Taswell-Langmead, cited, 34, 
105, 115, 129. 

Taxation, taxes direct forbidden 
to U. S., 33, 84, 150, 159, 190, 
202, 211; constitutional prin¬ 
ciples governing, 83, 96, 98, 
io 7 , 130, I 5 °» i 57 > WU 192, 
202; forbidden to states, 157; 
common to both state and 
nation, 170, 201. 

Taylor, Hannis, cited, 98, 115, 
120, 126. 

Tenth Amendment, 136, 139, 
140, 197, 199. 

Territory, acquirement of, 176; 
government of, 186. 

Third Amendment, 152, 196. 

Thirteenth Amendment, 187, 
* 97 - 

Threefold division of powers, 
in U. S., 132. 

Three functions of govern¬ 
ment (see Separation of the 
Powers ). 

Titles of nobility, forbidden, 
193, 202. 

Tocqueville, cited, 78. 

Torture, forbidden in England 
and U. S., hi. 

Trade (see Labor), constitu¬ 
tional right to liberty of, 55- 
62, 66, 77; secured in Magna 
Charta, 56; working for a 
year made a free man, 58; 
invaded by monopolies, 
113- 


Trades-unions, forbidden to 
deprive members of, right 
to law, 68. 

Treason, history and law of, 
89, no, 117, 150, 195. 

Treaties, made by President, 
etc., 165, 176, 183, 189. 

Trial by jury, a constitutional 
principle, 88, 96, 123, 184; 
in U. S., 153, 195, 197, 
202. 

Trusts, early precedents of, 59; 
laws against, in England, 68, 
74, 114; in U. S., 60, 145, 
204-208, 234-253; three 

remedies possible to cure 
evil, 239-246. 

Unconstitutional laws (see 
Laws, Supreme Court), are 
not annulled by courts, but 
void, ah initio, 19. 

Uniformity of laws, movement 
for, 224. 

United States (see Federal 
Government), citizens, rights 
of, 188, 197. 

Utah, constitution of, cited, 61, 
76. 

Venue (see Local Courts). 

Veto power, of President, 164. 

Villeins, villeinage, in Eng¬ 
land, 58. 

Virginia, constitution of, cited, 
16, 81, 86, 90. 

Wages, regulated by law in 
early times, 69, 70, 72. 

Walpole, Horace, quoted, 129. 

War, Congress has power to 
declare, 159, 164, 176, 189. 

Warrants, general (see Search). 

Washington, constitution of, 
cited, 76. 

Washington, George, cited, etc. 5 
166, 257. 


271 


INDEX 


Weights and measures, Con¬ 
gress to establish, 176. 

Wentworth, Peter, pleads for 
freedom from royal dicta¬ 
tion, 113. 

Wilkes, John, case of, 210. 


Wilson, Justice, 212. 
Witenagemots, in England, 8. 
Witnesses, constitutional right 
to, 153. 

Wyoming, constitution of, cited, 
62, 90. 


272 


By FREDERIC JESUP STIMSON 


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